Tax exemption and custody

there is nothing in my husband’s custody order that addresses who gets to claim the child for tax purposes. We pay a support amount to the ex and this past year (unlike previous years ) we have had the child stay with us more than half the year. In IRS documents that I see on-line we should be entitled to claim him based on amt of overnights and support. Meanwhile ex maintains her lawyer and accountant says she gets to claim. Our accountant says differently. Who is right?

Be VERY careful here. If his custody agreement says that the Mom is the ‘custodial’ parent (ie: the kids stay with her that majority of the time), then she has the right to claim him on taxes. Unless you have your custody agreement changed, then the state will see the Mom to be the one that gets to claim the child. If you claim him, and she claims him too, somebody’s going to get popped…and most likely, she will be in the right.

You need to read the custody agreement. If you’re going outside the agreement between the two parties, then I do not believe the state will see that as reason for you to claim the child. Especially if she’s claimed him in the past.

we had custody agreement revised to joint a few years ago. Last year we claimed him. There is no verbage in custody or divorce agreement that addresses ability to claim him on taxes. The child stayed with us 5 more days over the past year than with other parent.

The parent who has PRIMARY physical custody is entitled to claim the child, unless there is a court order or agreement that says otherwise.

so by primary physical custody that means the parent with whom the child spends the majority of overnights, right?

Yes, check with your tax preparer to ensure you qualify if you are close to a shared custody arrangment,