Claiming Children On Taxes After Divorce

Disputes between parents regarding claiming a Minor Child as a Dependency Exemption for Federal Tax Purposes

If there is no indication in a Divorce Final Judgment or Decision Pending Final Judgment or Property Settlement agreement as to who is entitled to claim the children as Dependency Exemptions then automatically the parent with Physical Placement /

Physical Custody of the minor children is entitled to claim the child or children for Federal Tax purposes.

This article is for informational purposes only and should not be a substitute to seeking advice from a Rhode Island Divorce Lawyer, RI Family Attorney or child custody Lawyer.

If there is a Property Settlement, Decision Pending, Order or Final Judgment that addresses the issue then the parties should follow the order or contract as to which party claims the child as an exemption. If they are unhappy with the order or contract then they may be able to modify it. If a person fails to abide by the Property Settlement Agreement or Court Decree then there can be serious penalties and repercussions in RI Family Court.

However, the IRS does not care about Rhode Island Family Court Orders, Decrees and Property Settlement Agreements! As far as the IRS is concerned, the parent with Physical Custody is entitled to claim the child regardless of any state court decrees and orders and regardless of indications to the contrary in a Property Settlement Agreement unless form 8332 is executed.

The Internal Revenue Service (IRS) has developed a very bright line, clear and concise rule regarding who is entitled to claim a child as an exemption for Federal Income Tax Purposes. Treasury decision 9408 states that the parent with physical custody may claim the children as dependants regardless of the terms and conditions of any Property Settlement Agreement, order or Final Judgment unless the noncustodial parent submits form 8332 signed by the custodial parent.

Pursuant to Treasury Decision 9408: the parent with Physical Placement of a child or children is entitled to claim the exemption (s) unless the noncustodial parent appends form 8332 to their federal income tax form signed by the custodial parent for the particular tax year in question. It makes absolutely no difference to the IRS what any State Court Property Settlement Agreement, Contract, Order or judgment states!

The IRS has absolutely no interest in getting bogged down in a contentious and messy state Family Court dispute or divorce between feuding parents. The IRS only cares about collecting money. The IRS has no interest in being involved in a dispute between two ex spouses or ex boyfriends and girlfriends.

The IRS bright line rules and regulations should not motivate parents to ignore or refuse to abide by Property Settlement Agreements or RI State Court decrees! There can be serious repercussions to not following orders and negotiated contractual agreements. If a person is unhappy with an order they should seek to modify it, if they qualify for a modification, rather than not follow it.

In some instances a parent can file in Rhode Island Family court and seek to nullify an order or contract allowing the noncustodial parent to claim the deduction when the noncustodial parent owes child support. It makes little to no sense that a person could claim an exemption when they are not paying Court ordered Child Support. However, a Parent needs to file in Court rather than taking the law into her or his own hands.

In RI, if a parent wrongfully claims a child in Contempt or Violation of a Court order, Property Settlement Agreement, Decision Pending Entry of Final Judgment or Final Judgment of Divorce than the aggrieved parent may seek relief from the Rhode Island Family Court for Contempt, Damages or other relief. The Rhode Island Family Court could order the parent who wrongfully claimed the exemption to file a modified tax form. The Family Court could order the parent who violated the order to pay damages or Attorneys / Lawyers fees to the aggrieved person. The Family Court could order other relief.

Therefore, it is prudent for a noncustodial parent who has an order or contract permitting the use of the dependency exemption for a particular year to request that the custodial parent sign IRS form 8332. The noncustodial parent who is entitled to claim the dependency exemption for the minor child should attach form 8332 to his or her federal tax form. If the custodial parent refuses to sign form 8332, the noncustodial parent may file a motion in Rhode Island Family Court asking that the custodial parent be ordered to sign the form or for contempt, Attorneys fees or other relief.

Legal Notice per Rhode Island Rules of Professional Responsibility:

The Rhode Island (RI) Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer / attorney as an expert or specialist in any field of practice.

About the author: David Slepkow is a Rhode Island Divorce Lawyer concentrating in Divorce, Family Law, Restraining Orders, Child Support, Child Custody and Visitation. David Slepkow has been practicing for over 12 years and is licensed in Rhode Island (RI), Massachusetts (MA) and Federal Court. Free Initial consultations. Credit Cards Accepted. You can contact RI Attorney David Slepkow by calling him at 401-437-1100. For a complete list of Rhode Island Law Articles written by RI Attorney David Slepkow, please visit


Frequently Asked Questions

    Claiming children on taxes after divorce.?
    My question is kind of complicated.

    My husband has 2 children from a previous marriage. Their mother took them from their residence 8 years ago. He has paid child support for the last 8 years. She bounced around and he had a hard time keeping tabs on them (she moved 1500 miles away). 4.5 years ago we found out that she had lost custody for drug abuse and custody had been awarded to her mother, the skipped over my husband because his ex said he died while he was in the Navy and he was still paying child support at the time, but like I said they totally skipped over him. (she was a heavy drug user at that point). Rite at this time is when the divorce was being filed and since neither of them had custody there was NOTHING in the decree regarding custody or taxes or anything. We have being trying to gain custody for 3 years but for many reasons we were unable to do so, now it’s a financial problem, we don’t have the 12K to take her to court for custody which is the estimate from our attorney in her state. In the beginning when we tried, we needed a home inspection, and in our state you can not have a home inspection without enrolling in foster care parent classes and at the time we were both full time college students, unmarried, working part time, we could not enroll.

    So now his ex has the children again, apparently her mother could not handle them and just illegally gave them to her. The state of Al says they won’t intervene until someone complains about their welfare, but my husband can’t get custody with out paying nearly 12K to do so.

    So my question is this. He pays for their medical care and he pays child support – she has not held even a part time job for more then 3 months and rarely works, can he claim them on our taxes??

    Thank you!
    As far as her expenses, she lives off of the state, he pays more in child support then she makes working in a month and he pays their health insurance premiums and also pays a portion of money to the state of AL to pay back her assistance money.

    I don’t know if that matters.

    We’re going to speak with an accountant in a week, but I was just curious rite now. Thanks!

    • ANSWER:
      It doesn’t matter who pays what or who works what.

      If there are court papers stating who claims the kids, follow them.

      If there are no papers, whomever the children lived with for the longest period of time last year clams them.

      Unless, both parties agree to who should claim the kids or if they should split them up and each claim one. Get it in writing.

      The important thing here is to have back up if you get audited. You have to be able to prove you had the right to claim the kids.

    Claiming child on taxes after divorce?
    My husband and I are going to mediation tomorrow. I just want to see what everyones opinion is on this before we go in. My husband wants to split claming our daughter on our taxes every other year. We have been seperated for 3 1/2 years now since my daughter was three weeks old. He just started paying child support last year when I call and remind him. We have it now that his child support will come out of his check every week. Do you think that this situation is fair to me. He will get to claim his child support on his taxes right? I live in Florida and I qualify for the low income tax credit. The only reason I qualify for it right now is because of my daughter. That money really helps out to buy us clothes and food and whatever else we need. Should I let him claim her everyother year. If not how do I respond to this when it comes up tomorrow so I don’t sound like an idiot? Please let me know your opinions thanks!
    Sorry I didn’t clairify this. I have had primry custody and will continue after the divorce. He gets to see her when he wants to .. probably once every month or two.
    I’m sorry if I OFFENDED you pretty granny, I spend all my extra money (If I ever have any) on my daughter. I rarely buy anything for myself. Yes I do have a job but it doesn’t even cover everyday expenses like rent electricity water insurance. If I want to buy myself something special with my tax money I think I should be entitled to do so.

    Thank you everyone for your great answers so far :)

    • ANSWER:
      Who has primary custody of the child? If you do, then you claim her every year. If custody is joint, then he’s has a valid request.

      ADDITION: If you have primary custody, then you claim her on your income tax every year. Don’t budge on this. His “child support” payments won’t even begin to cover her needs. Yes, they will help. But you are the primary custodian and you need the tax credits to help care for her.

    So advice about claiming you child on your taxes after a divorce?
    My fiance divorced her husband last year. It became final in March. Her daughter lives with us.. Her ex-husband is being a jerk by trying to claim her for his taxes.

    We both received unemployment compensation for the entirety of 2008. Her ex is saying that she didn’t make enough money to claim her.. Is this possible??

    • ANSWER:
      The custodial parent gets the exemption unless there is an explicitly worded court order saying otherwise. The custodial parent is the one that the child lived with for the greatest portion of the year. Absent a court order, the only way that the non-custodial parent can get the exemption is if the custodial parent give them a completed Form 8332 or similarly worded statement surrendering the exemption.

      If her only income is from unemployment it’s likely that she won’t owe any tax if she claims her daughter. Assuming that she can file as Head of Household she would have needed to have received more than ,5000 in unemployment before any tax would be due without claiming the child. If she earned less then it would make sense for her to surrender the exemption as it’s useless to her. However if she earned any more than ,500 then she will need the exemption to minimize or eliminate the tax burden. If she cannot file as HoH the amounts drop to ,950 before taxes start to kick in.

    Can I claim all of my children on my taxes after my divorce with joint custody?
    I live in the state of Michigan and have 3 minor children who live with me. My soon-to-be ex has visitation and pays child support. He wants to claim 2 of the 3 kids on his taxes, saying he provides 55% of their support and I provide 45%. I would like to claim all 3 children. Is this possible?

    • ANSWER:
      if the kids LIVE with you for more than 183 (one day over half of the year) then legally, he cant…unless it is stated in your custody/divorce papers

    Tax Question about someone claiming a child after a divorce.?
    My ex and I have joint custody of our kids, this was that year that I was to claim them on my taxes. However, she filed ahead of me and claimed them anyway. I have a court order that says I file this year and basically she violated it. What if anything can be done, other than the local courts for violating the court order?
    In the decree it states that the parties shall alternate claiming the child begining with taxes in 2009 (which she filed last year).

    • ANSWER:
      So, who is the custodial parent? The court decree of “joint custody” is worthless for determining this.

      If she is the custodial parent and your court doc says you were to claim the exemption and child tax credit in 2009, then you get to file by mail and attach a copy of the court decree (just like you did in every other year that you were the one to claim the exemption).

      If she filed correctly (claiming only HOH, child care and EIC), your return should not have bounced if you indicated this was a Non-Custodial Parent situation.

      If you do not have a valid decree (showing name, ssn, years to claim, her signature and dated before 1/1/2009), then you’d have to take her to court to get a signed 8332.

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