claiming children as dependants


In a divorce, which parent can claim the children as dependents for tax deductions? The ultimate authority in determining the allocation of dependency exemptions for minor children is the Internal Revenue Service and the Federal Tax Code.

The general rule is that a tax payer may claim a dependency exemption for a “qualifying child”. A “qualifying child” means:

  • a child or descendant of the tax payers
  • a child that has the same principal place of abode as the tax payer for more than one-half of the taxable year
  • a child who is under the age of 19 (or a student under the age of 24)
  • a child who has not provided over one-half of his or her own support during the taxable year

The Internal Revenue Code also has a special rule in the case of divorced parents, which provides that a child is considered “qualified” if the child is in the custody of one or both parents for more than one-half of the calendar year, and the child receives over one-half of his or her support during the calendar year from the parents. Thus, in the case of divorced or separated parents, that would mean that the custodial parent would be considered the parent entitled to claim the child as the “qualified” child.

Section 152 of the Code defines the “custodial parent” as “the parent having custody for the greater portion of the year”, being based strictly on the number of overnights of the child with the parent.

Further, there are certain tax benefits, such as the dependent care credit, also known as the child care tax credit, and the earned income credit, that may only be claimed by the custodial parent.

This is an extremely confusing part of the law, because although Minnesota Courts retain authority to allocate dependency exemptions as part of the Child Support Order, these allocations by the Court are not necessarily binding on the Internal Revenue Service. Thus, it is important when considering allocations of dependency exemptions between parties in a divorce, to fully understand the tax implications and whether the IRS will recognize and allow the divisions intended by the parties.

Feel free to call our office for a free initial consultation to discuss these and any other family law issues you may have.

Julie Pawluk, AttorneyJulie Pawluk

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