Claiming the Kids on Income Tax Return in Joint Physical Custody Situation 7

Section 152(e) of the Federal Tax Code provides that the custodial parent of a couple’s children after divorce (or after declaration of paternity in the case of never-married parents) is generally entitled to the personal exemption for the qualifying child. But who gets to claim the kids in a joint physical custody situation?

The IRS does not allow for a single exemption to be “split” between the two parties in the same year. You can take turns claiming the exemption by swapping out years but one custodial parent will have to sign IRS Form 8332, releasing their claim on the exemption for any year the other custodial parent claims the exemption (and vice versa). Or if there are two children, for example, each parent could claim a different child. Mom can claim one and dad can claim one. (As the children reach the age of majority and/or emancipation, the parties can agree to begin alternating the exemption as outlined above.)

In general, the IRS allows the parents to agree who can take the exemption when both parents meet the qualification requirements, such as in the case of joint physical custody. If the parents cannot agree and the child lived with both parents the same amount of time, then the IRS will grant the exemption to the spouse with the higher adjusted gross income (AGI) and disallow the claim on the other parent’s return. If the parents cannot agree and the child lived with one parent even slightly longer than the other, then the IRS will grant the exemption to that parent and disallow the claim on the other parent’s return.

It should also be noted that other credits such as the child tax credit, earned income and deductions for child care expenses can only be taken by the parent claiming the child as an exemption – these cannot be divided between the parents.

It is unusual for a court to order joint physical custody unless the parties are in agreement, so it is not something that a court will resolve on its own. The income tax exemption is generally something that is covered in a settlement agreement when the parents resolve any custody issues.

Print Friendly

Discussion

  • dgrom74

    My X-husband and I have joint custody, however, we have been separated and divorced for 5 1/2 years now. Joint custody was agreed to in Sept 2011. I had it written into the divorce papers that I would claim the children until they turn 18. When we were in court the Asst DA said he would have the right to claim them this year because of a new law. She also said it would be in my best interest if he claimed them, because I he would be able to pay off his back child support off quicker. I feel this is unfair. He still owes back child support and I believe he owes in back taxes. If he does, I will not see the back child support or be able to claim my children as stated in the divorce papers. Also, the back child support was only figured from the time of our divorce. When he left a year 1/2 before the divorce was final, he left me with all of the household bills, insurances, and responsibilities. He was hit or miss on support and I could not afford to get my divorce. By my calculations, he owes me over ten thousand before the divorce. He still owes me for 1/2 of my sons surgery from this year. I cannot afford to hire a lawyer to file contempt charges. Why am I stuck when I followed all of the rules? He signed the papers agreeing to pay 1/2 of any extras the children may have. Still, he gets away with not taking care of his responsibilities, and I am still struggling to make ends meet.

  • Kcon84

    I’m the mom whom has joint primary residential custody of my five year old, divorce decree states the parties shall alternate years, it does not mention anything about being up to date on support which I never seem to receive.supposed to be his year to claim, but he has not followed through on visitation or support agreements, what legal trouble could I face if I claim and have the ability to prove I provide more than half of her support? I’m in Illinois.

  • Charlene

    I have sole legal custody of my son who is 7 years old. Me and his father share sole physical custody and it says we rotate years on filling income taxes. He just started seeing my son in Oct, 2012 every other weekend and before he was missing in action. Do I have the right to fill my son on income taxes this year of 2012? Cause I already claimed him on my taxe form at work this year. I dont think that will be fair since he just started this year.

  • ally

    i have a few questions if anyone can help. i have joint shared custoday of my two children. i was the custodial parent until the beginning of 2012. it changed to joint shared. i have my children most of the time because he does not go by the court order. and i really dont hassle it. but at this point my concerns are income tax since my parents mostly support me and the kids. they should be allowed to claim my children. even though we have joint shared custody im kinda freaking out hes gonna claim them well his girlfriend. even though i had them more and pretty much paid for everything.

    • http://www.chapmanmotorsales.com/ Lawrence

      I’m not sure if I can provide the best answer to you so in my opinion it’s better to seek professional’s help regarding this matter. I can see it’s a bit complicated but with the assistance of legal and tax experts all your queries could be answered.

  • Alex

    Nice article!

  • Sage

    Can any help? I have a child that just turn 18. Her father has claiming her on taxes, But because she is now 18. Can i claim her on my taxes next year?