Who claims child on tax returns?

No, unless you have specified otherwise in your separation agreement, since you have primary custody you get to claim the child every year. In order for him to be able to claim her he would have to have you agree to sign an IRS form for one year or a number of years. If you both claim her it is likely that both of you will be audited and he will end up paying the bucks to the IRS.

OOOOH I totally know the answer to this one.
The publication is called “IRS Publication 501”. The information is on page 11.

For a “normal” divorced couple, the person to claim the child as a dependent on tax is whomever had the child for the majority of the tax year. This is NOT necessarily the court-ordered primary custodian!! For example, if you have custody and your child lives with your grandma instead, then grandma can legally claim the child. If you don’t have primary custody, but the other parent allows the child to live with you for most of that year (regardless of what the custody papers state!!) then the IRS will allow that parent that had the child physically in their home to claim the exemption. (See page 11, “Custodial Parent and Noncustodial Parent”). This is very important for any families who might be “trying out” custody with the other parent without actually amending the order! If you let your child live with the noncustodial parent for the majority of the year, you will more than likely not be able to claim that child on your taxes without permission from the other parent, despite what your divorce decree might state.

So, because you have her for the majority of the year, every year, NO he cannot claim her without your permission. For him to claim her, you would have to sign a Form 8332, which is a written declaration releasing exemption to the non-custodial parent.

Thank you two for your quick responses. I’m relieved to know that he can’t claim her every other year considering how she isn’t very “dependent” on him :slight_smile:

Unless there is an Agreement regarding the dependency exemption, the parent who provides the majority of the support for the child is the one who is eligible to claim the child on their taxes. That is generally the parent with whom the child spends the majority of the year. I am not a tax attorney and do not intend this to be tax advise, if you have a question regarding who can legally claim your child, you should consult with an accountant or tax attorney.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


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 but a full discussion with an attorney should be undertaken before taking any action.

My ex and I are currently separated and due to be divorced late Sept. 2007. We are in disagreement as to whom should claim our daughter on taxes. He wants to claim her every other year and I want to claim her every year. I have primary custody and his visitation totals 48 overnights a year. Can he claim her every other year without my permission?