Who gets to claim the child as a dependent in a Texas divorce
The question often arises after a divorce in Texas — which parent
gets to claim the child as a dependent for tax purposes? Often this issue
is settled by the obvious split of parenting time greatly in favor of
one parent, but as we have seen a rise in equal time splits for parents
and children we have also seen a rise in arguments over who should be
entitled to the dependence exemption.
The IRS provides a special rule for children of divorced or separated parents
in IRC 152(e). The custodial parent will have the right to claim the exemption
provided that the parents lived apart for at least six months out of the
year, the parents together provided for more than half the child’s
support, and the child lived with one or both parents for more than half
the year. The custodial parent is determined either by the face of the
court documents or by physical custody. Physical custody is which parent
has the child for the greater number of nights per year. If there is a
literal tie, the winner is the parent with the higher adjusted gross income.
The custodial parent may release the right to claim the dependency exemption
to the noncustodial parent by completing Form 8332 “Release Revocation
of Release of Claim to Exemption of Child by Custodial Parent”.
This form must be attached to the noncustodial parent’s tax return
to claim the dependency exemption.
It is not enough to have the assignment of the dependency exemption contained
in the divorce decree. Likewise, the IRS will not accept a dependency
release form if the court documents condition the exchange of the dependency
exemption upon current payment of child support.
The general requirements for claiming a dependency exemption include
The taxpayer cannot be the dependent of another.
The dependent must be a US citizen or resident alien or resident of Canada
or Mexico for some part of the year.
The dependent cannot claim himself or herself on his or her own return.
The dependent must be a qualifying child or qualifying relative.
A qualifying child is one who:
is the taxpayer’s child, stepchild, foster child, sibling, or step sibling.
either under the age of 19 and younger than the taxpayer and spouse, or
under age 24, a full-time student, and younger than the taxpayer and spouse.
must have lived with the taxpayer for more than half of the year.
must not have provided not more than half of his own support.
No joint return is being file during the year.
Only one person can claim the dependency exemption for the child.
For 2014, the dependency exemption is $3,950.
A child who is over the age of 18 (and not a full-time student) or has
been emancipated cannot be claimed as a dependent.
Hat tip to the ABA Section of Family Law’s Fall 2014 edition of Family
Advocate and the article “The Dependency Exemption” for the
inspiration for this article.