On behalf of The Law Office of Gustavo E. Frances, P.A.
If you have children, you’re no doubt aware of the dependent child exemption available to you on your taxes. Whether single or married, this exemption is available to all taxpayers with dependent children. Things can get complicated, however, if you are the divorced non-custodial parent of a dependent child or children.
The requirements for claiming a child as a dependent are fairly straightforward. They must pass the qualifying child test.
- The child must be your son, daughter, stepchild, or eligible foster child.
- The child must be under 19, or if the child is a full-time student, under 24. There is no age limit if the child is permanently and totally disabled.
- The child must reside with you for more than half the year, but several exemptions apply to this rule.
- The child cannot provide more than half of their own financial support.
- You have to be the only parent claiming them on taxes.
In the case of divorced parents, typically, the custodial parent is the one who will qualify for the deduction. However, as stated above, there are exceptions that apply to this rule. For the non-custodial parent to be able to claim the child as a dependent, the child must meet all of the above qualifications, except number 3.
In some divorces, if one parent is paying child support, the divorce agreement may allow for the non-custodial parent to claim that child as a dependent as long as all child support payments are made on time. However, a court decree stating this alone is not enough to guarantee that the non-custodial parent can claim the child.
The custodial parent must sign a decree stating that they will not claim the child as a dependent. The non-custodial parent must then attach that decree to their tax return for the year in which they are claiming the child as a dependent. The IRS provides form 8332 for this purpose.
Without that written decree or the form 8332, you may not be able to claim the child as a dependent on your taxes if you are the non-custodial parent.
If a judge has obtained that decree as a part of your divorce agreement, you are entitled to claim that child as a dependent. However, that court decree alone is not enough, at least in the eyes of the IRS, to do so. If you do not have the decree, you can always choose to file an extension to give you the time to get that extension. Keep in mind that without the form 8332 or the written decree, many tax courts have found that the dependent claim made by the non-custodial parent was invalid.
Going ahead and filing the child(ren) as a dependent could cause the claim to be disallowed, especially if the custodial parent claims the child(ren) as a dependent. You do have the choice of simply not filing with the child as a dependent and letting the matter go.
If you do decide to pursue the matter, however, it is best that you do so through an attorney. Contact the Fort Lauderdale family law offices of Gustavo E. Frances today to see where you stand as far as taxes and non-custodial dependents.