If you have primary physical custody of the child, then the state recognizes you as the one to claim the child on taxes. Now you CAN give your ex that right, but you can’t claim him also. If you do, the state will be flagged and your ex will be ‘in trouble’ if he doesn’t have documentation stating he has the permission to claim the child.

If you don’t have anything in writing addressing the tax issue, then you get the child on the taxes. If you both claim him, your ex will probably get caught. That’s what happened to my ex. The IRS was not very nice about it either.


According to the IRS the parent who has primary physical custody of the child claims the dependency exemption. Sometimes parents agree to allow the non- custodial parent to claim a child, this is in cases where the primary custodian earns little to no income and would not benefit greatly from the exemption.
I would not allow your husband to claim your son unless you fall into that category, and even then, not unless he agrees in a notarized agreement (or consent order) to reimburse you for a fair share of the benefit he receives. He cannot claim your son without you having signed the proper release.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


Who has the legal right to claim a minor on their taxes?

I have custody of my 5 yr old son, my ex husband has him every other weekend (if he gets him then), and he pays child support, and has insurance on him. He wants to claim my son on his taxes so he can get some extra money back? Should I allow this? I don’t think I should.