Are you a divorcee whose dependent children live with the other parent? If so, you may experience issues when it comes to filing taxes. You may or may not fully understand the legalities of your divorce decree and how the decree applies to your tax filings. Understanding the law can help make differences of opinion more amicable.
Determining Who Will Claim Dependents
Non-custodial parents may not always legally claim children on taxes, even if they paying child support, health insurance, and taking care of other financial obligations. The custodial parent has the final say regarding whether or not the non-custodial parent can file any of their dependents if a court order is not in place.
If the custodial parent decides to allow a non-custodial parent to file their child, Form 8832 must be submitted to the IRS. The form is completed by the custodial parent, and the non-custodial parent may qualify for certain deductions by claiming the dependent.
Joint Custody Considerations
If a joint custody ruling was made in your divorce court decree, do not make the mistake of thinking that you and your ex-spouse have "equal rights" to claim your children. The IRS views the the parent who the child spent the most time with as the parent who has the legal right to claim the dependent. If you both file and claim the same dependent(s), your returns will be "flagged," and you will be required to show proof of where the children resided for the majority of the year.
It is best to address tax matters when divorces are underway. Understandably, this is not always possible or taken into account. When it is, this information aids in ensuring that tax related matters are documented and legally binding. Non-custodial parents should keep in mind that judges cannot override tax laws.
For example, despite being able to claim one or more of your children on your taxes, as a non-custodial parent you would still not qualify for the earned income tax credit (EITC) even if your wages were within the income limits for the credit. This is due to the IRS requiring dependents to have lived most of the year with the parent who claims this credit.
If your divorce decree did not outline tax related matters, a family lawyer at Lois Iannone Attorney at Law is a good resource to understand your options. You may be able to petition the courts for an amended divorce decree that addresses your specific issue. Keep in mind that a judge must still make a final ruling on your request.