Who Gets the Tax Exemption?

There’s a misconception among many divorced parents about who gets to claim the tax exemption for the children. The rules are pretty simple, so let’s spell them out.

In a typical post-divorce situation where the parents together are providing more than 1/2 the support of the children, where the divorce decree is silent about who should claim the exemption, and where there has not already been an exchange of an IRS Form 8332, the exemption belongs to the parent with whom the child lived for more than 1/2 the year. This is true even in cases where the NCP (non-custodial parent) provides more financial support than the CP.

Let’s say you’re a CP who believes the NCP is claiming the exemption illegally. You have two basic choices; you can report the NCP to the IRS by calling the IRS Tip Line at 1-800-829-0433, or you can choose to do nothing. Judging from the experience of my clients, the IRS is not all that effective in matching up the tax returns of two parents claiming the same exemption. I’m sure it happens, but I know many cases where it doesn’t.

There are many cases where it makes more sense for the NCP to claim the exemption. As you can see on this chart on my web site, the exemption reaches its maximum value for Adjusted Gross Incomes of $40-70,000. Above and below that income figure, the exemption is worth less. So a CP to whom the exemption is worth less might agree to share it with the NCP using IRS Form 8332.

One last thought about exchanging the exemption. In my state of Alabama (and in many other states as well), the child support guidelines assume that the CP is keeping and using the exemption for the children. If the CP allows the NCP to use it, one would expect the NCP to provide some form of compensation for that value.

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122 thoughts on “Who Gets the Tax Exemption?”

  1. I honestly don’t know. I suppose that if Mom wants to take advantage of Dad, she can do this. Good lesson for everyone here; if you’re allowed the exemption for children not living with you, GET THAT FORM 8332 SIGNED!

  2. My ex has ncp of our four children but can claim for 3 excemptions this was becasue my new husband is 100% disabled through the military and has a non taxable income. They gave me a potential income of $1533 and alloted me $923 for the 4 kids. He has them for 2 nights every 2 weeks and 30 days during the summer. I pay the premium for all four kids it comes out of my child support?!! the medical bills not covered are 75% for him and 25% for me. I have two children that were recently diagnosed with a genetic disease which allows for alot of gas milege to doctor appointments. even though their medical costs are covered can I go back to modify the order becasue of the distances I have to drive to doctor appointemnts. Why would I have to pay for thr whole premium for the kids. He has been claiming for all four instead of 3 he claimed for all four children for the stimulas check. I only have a military retiremnt for income which is $335 amonth How comes he was able to claim for all four for the stimulas check Should I have been able to claim for at least one. When I found out his dishonesty I confronted him on it and he gave me $600 for two of the children. I also found out becasue he was withholding his earning statements that he is meant to provide me every year that he had a raise by $16,000 in the past three years. is this enough grounds to modify the child support order. I have a child under 30 months old too, was recently diagnosed with a spinal disease and can’t work i have no high school diploma etc etc. I know this is muddled but I am at my wits with this man lied in court and becomes so abusive on the phone when I need to ask him for help concerning the kids

  3. I am currently trying to re enter the US Army. I have been out over ten years. During my first tour in the service I married real young. I went through the process of being served and signing off on the divorce. Knowing I would be out of state for the court date I asked would every thing still be enforced. I was told yes. I have since then remarried and have been with my wife six years, and have come to understand that my my divorce from my first wife was dismissed. What should be my next move! I don’t not know which way to go.

  4. I am divorced with 2 children. My 18 year old moved in with ex the first week of June to attend college in the fall. She is currently living with the father and asked me to pay for college. According to my court decree she is emancipated at 18 and child support stops from the ex. If I pay for college do I still get to claim her as my dependent? Do I get to deduct the college expense on my taxes?

  5. The exemption for a person who has reached the age of majority but is still a dependent belongs to the person who provides more than 1/2 of that person’s support. The cost of college counts as part of that support.

  6. Here’s a follow up to my original question. Now that I have paid for the Fall tuition for my 18 yr old, I am having second thoughts. As mentioned she is now living with her father. Her father works for the college and says that she can go to school for free if he claims her as an exemption for 08. I am leary of this because the fall semester begins the first week of January 09. How can he even prove that he claimed her for his 08 taxes so soon? Also, I make about 90K a year, so I guess the exemption would not benefit me as much as it would him because he makes about 40K. Or is this not true? I really should have told my daughter that if she moves out to live with her father then she forfeits her benefits of me paying for college. She could have went to the in state school for a lot less or take out a loan. The father and I don’t get along so I’m very cautious about his intent or lack thereof. I just thought that the cost of college outweighed the exemption for 08.

  7. Child is 18 and in college. Child support ceased upon graduation. Reside in Minnesota. Divorce decree stated ex and I would share child exemption every other year. Decree did not state when child support or sharing of exemption would cease. Child support ceased according to state law. Who gets exemption now?

  8. The exemption for an adult child no longer depends on the language in the divorce decree. It depends on which parent provides more than half the support for the child. If neither does, the exemption belongs to the child.

  9. My question to an accountant relates to the last statement in 6 above and your reply 7.
    She ref me to: 26 CFR Part 1 Federal Register / Vol 73, No. 128 / Wed July 2, 2008 / Rules and Regulations 37803; Example 18. Accountant said: CP keep up with all expenses of children and who paid, CP file first and refuse to sign form even if Court ordered CP to. Okay…
    However, this is an accountant answering a divorce question. Please advise.
    Thanks

  10. If you have an accountant who’s looked at your facts and given you advice, it’s a no-brainer; you should take that advise and not listen to some jackleg hanging out on a message board.

  11. My divorce decree states that my ex must fill out and sign form 8332 in order to give me the right to claim the child every other year. It even as exhibit A showing the actual form but it is an older 8332 form. However, due to the change in the IRS law and the change the way 8332 is written in regards to the credit for the child. i.e. I can no longer claim the child, but give up the credit to my ex-wife. It’s either both or nothing. Does this new IRS law over ride the divorce decree from 1993?

  12. I can’t tell what you’re asking, because your statement of the facts is unclear. I THINK you’re asking whether a change in the IRS rules for who is entitled to claim an exemption in the absence of an agreement overrides the divorce decree, and if so, my answer is no. If the form is different, ask Mom to sign the form as it now exists.

    If you’re saying that the exemption no longer does you any good, my suggestion would be to let it go and be grateful for your good fortune.

  13. I am divorced and my x and I were each given the right to claim one child on our taxes (we have 2) in our decree. He has not seen the children once on any visitation, he does pay support-even gets credit for visitation that he does not take. What would happen if I filed both kids even though they have yet to spend one day with him?

  14. What would happen is that you would be defying the judge’s decree. Not a place I would want to be, but that’s just me. If you think it’s time for Dad to stop claiming the exemption, the appropriate remedy is to ask the judge to change the decree.

  15. me and my ex have a daughter and my daughter always lived with me. we went to court and we got joint custody and i got primary physical custody, now the noncustodial parent wants to claim our daughter, but i advise him that i’m claiming her this year, he said that he can claim her without my consent and that its the law that he can claim her without my consent. he still owes arrears and he only pays child support(18%) and has no insurance for our daughter. i have medicaid and i provide rent, utilitys, food and personal things for our daughter. and he only pays the child support which is less then i pay for support for our daughter. am i able to disagree for him to claim her this year?

  16. If the decree is silent, as between two parents who together provide more than half the child’s support, the exemption belongs to the party with whom the child lives more than half the year. If you are that person, you’re entitled to the exemption and should claim it. If somebody else claims it, that’s their decision, and they can explain to the IRS how they think they’re entitled. Hint: it won’t be a fun conversation.

  17. Hi,
    I was wondering if federal tax laws cancel out a child custody agreement in the case of seperation not divorce? here is my situation, my soon to be ex-husband and i came to a written agreement which was not court order, yet was signed and whitnessed BUT not notorized that he would claim our 3 children on taxes (one of which is only his step-child). This agreement was made before he had his friend forge my name on the 2008 stimulus check and pocketed the entire 1700.00 amount for himself. I believe what goes around comes around, and would like to claim my children on my taxes (in a round about way screwing him out of about $2000.00 of his expected return). In our agreement it states that he would place 16.6 percent per child of his return into a savings account for each child, however, he has already stated he wasnt going to uphold this statement. The children all live with me, i do not have a court ordered agreement, and i havent signed any forms to allow him to claim, so my question is: can it come back to bite me in the azz if i claim my children even with the agreement we have in place without the risk of getting bit by the irs at a later date?
    thanks so much

  18. I don’t know what you have, but the only thing that matters to Uncle Sam is whether the custodial parent has signed a Form 8332. Absent that, the exemptions belong to the party with whom the children live.

  19. I make around 12 grand a year. Father makes 140,000 per year. We have 3 children. Would it benefit me to have an exemption or just give all 3 to him? Also, I will have 2 children at least 50% of the time. Can we both file head of household?

  20. Abbey, I genuinely don’t know. The best way is to use software like TurboTax and run it both ways. Anyone who pays for a household and has a dependent relative live with them for more than half the year can file as head of household.

  21. My ex. and I divorced three years ago. At the time, he was ordered to pay support for two minor children. I retain full custody of the children. He does pay his support but does not see the children. Therefore, I most certainly provide for more than 50% of their support. Here is the question…our divorce decree states that each of us may claim one child for tax purposes. However, the child the ex. was claiming is now emancipated. Because she is a full-time college student and residing with me, I may now claim her as a dependent. The problem is that the divorce decree states that we must alternate years with the youngest child. I don’t have an issue with this but who gets to claim her first? The decree does not specify this. There are three years that we must alternate years and as custodial parent, I believe I should be able to claim her two of the three years. The ex. believes he gets to claim her first because he can’t claim the other daughter anymore. On the other hand, I believe I should claim her the first year and the third year (and the ex. the second year) because I provide far more support than he does. The amount of support he pays per year is less than the amount of credit he will get on his taxes by claiming her.

  22. I have several responses as I read this:
    (1) Who didn’t claim your younger child last year? That’s the one who has a better claim to the exemption this year.
    (2) If you believe you’re right, go ahead and claim the exemption. If Dad claims too and the IRS catches it, you’ll both have to give your best defense about why you’re entitled.
    (3) Have you already signed and delivered to Dad a Form 8332? If so, what does it say?
    (4) The exemption is valuable, but it’s not THAT big a deal. You could always choose to let Dad have his little triumph and move on.

  23. I live in California. Can I claim an exemption if I have permanent spousal support? My attorney just informed me that Dad would get all the exemptions and I would forever give up the right to claim 1 of my children once I have permanent spousal support. I will be the custodial parent.

  24. I know of no reason why a person’s claiming the exemption for a child would have any connection with whether that person receives spousal support. Ask your attorney to tell you more about how the two are related.

  25. I am from IL and I settled to give my ex wife the benifit of claiming my twin boys for taxes. Since then she has remarried and I am still single. Her new husband makes a lot of money and I struggle since I pay child support and cant claim them or one of them for taxes. Can I change this or due I just have to suffer since there has been so many tax law changes in the last 10 yrs. I even take them on weekends I am not suppose to but I cant afford it anymore. I am current on child support and feel like i am not getting what I deserve.
    Thank you.

  26. I can’t speak to IL law. In my state, the guidelines assume that the custodial parent is using the exemption for the children, so that a parent in your position who wants to use the exemption would be asking his Ex or the judge to be extremely generous with him.

  27. Happy New Year,
    If you could guide me, or re assure us that the IRS will serve us justice. I married an extremely wonderful man, who has an extremely malicious and not so bright x wife. They have twins, in their divorce decree it clearly states, they get to claim 1 dependent each. Fair enough, they have been divorced for several years now, this is not new. How ever- at end of 07, he asked her to sign the lovely 8332 form, not only once but twice (hubby misplaced 1st one she signed, so he then had her sign another & then found 1st one, so we actually had 2 origionals) well, long story short, My husband went & I went to file taxes at end of 07 & got denied the right to claim because she “changed her mind” and claimed them both. Uhm okay, well we call IRS immediately explain,We do just as they ask and We send all documents-full divorce decree & origional 8332 as they requested, registered and certified mail. We still have no answers as to what happens next? Its tax time again, IRS still has not been very helpful, we know nothing? What does the IRS do, we are patient ofcourse, but clueless and kinda left in the dark, does my husband have to hire a lawyer or do we just keep on waiting. What if she does this again? Im just extremely curious and wee bit fed up, Will they fix this? Im a firm believer of the hole what goes around comes around theory, its just tough. PS ThankYou

  28. If the Form 8332 says Dad gets the exemption for all years, Mom’s changing her mind is irrelevant. Dad should keep claiming and keep attaching the Form 8332.

  29. I have a question…for the past 3 years i have claim a child who’s my ex wife sister. Her mom and i agree that i was going to claim her now that we split her mom wants to call the irs saying that i claim her daughter without her permission. What should i do?

  30. You are allowed to claim the exemption for a dependent relative. If the person you’re claiming as an exemption is not a relative, I don’t know of any way you can claim the exemption. I’m sorry.

  31. I live in Colorado. My divorce was in December of 96′. In court the judge stated the NCP will claim the exemptions, and I (the CP) can claim every fourth year. I received a copy of the decree with it stating that the NCP can claim the exemption with no mention of the claim every fourth year. Since then, I have claimed every fourth year anyway, as it was stated in court. I have recently read that the NCP can only claim the exemption if the IRS Form 8332 is signed by the CP, or a SIGNED document such as the decree states the NCP can claim the exemption. I have never signed the decree, nor have I ever agreed to him receiving the exemption. This was also stated in court. He does not provide more than fifty percent, and has not been current with his support in regards to his medical provisions. The tax year 2007 was my fourth year for filing the exemption, and I have received the amended form for my taxes. He obviously claimed the exemption for the same year. I sent the amended form back to the IRS, as well as an unsigned, refused copy of the form 8332 and stated that I am the custodial parent, and I do not intend to sign the the IRS form that releases the right for him to claim the exemption. I believe I am within my rights to claim the exemption, as the NCP had our son for 3 weeks in the year 2007, and the NCP was in default of the decree regarding medical. It does not state in the decree that I am to sign the 8332 form and give up the exemption rights to the NCP, and it does state that he can claim the exemption as long as the support is current – which he is not. I can provide proof. How, in your opinion do you think the IRS will respond to this? I am feeling used and abused here for the past 12 years.

  32. Your fear isn’t the IRS, which will look not to the court’s decree but to who has signed a Form 8332 and where the children live. Your fear is the judge, who is likely to be quite concerned that you are defying the court’s decree. That’s not a position I would want to be in, but each to his (or her) own.

  33. Can I claim my 18 year old daughter eventhough she hasn’t lived with me for 2 years. She has been living with my ex-boyfriend & I haven’t allowed him to claim her because I am the sole custodial parent (her biological father has never provided support). My daughter isn’t filing taxes this year so I want to claim her for another year.

  34. I assume from your question that you are not providing more than half the child’s support and that your ex-boyfriend is. If so, it doesn’t matter much whether you “allow” him to claim her; he is entitled to claim the exemption pursuant to IRC Section 152(d)(2)(H), and you are not.

  35. Does anyone know what a father can do when his ex-wife steals the tax exemption for the minor child? My ex-wife took my exemption last year and is again refusing to sign the form 8332 again this year. Our divorce papers say we are to each claim one of our two sons and that I must be current in child support which I am and was last year as well. I talked to a member of the IRS for one hour today and got nowhere. After an hour I hung up out of frustration. Please, if anyone knows who can help please let me know. I cannot afford an attorney at this time since I am unemployed and attending school full-time.

  36. my divorce decree states that my ex and I claim our daughter in alternating years. I just did my taxes and they were rejected due to her SSN showing up already (I used turbo tax). He was ONLY supposed to be able to claim her last year if he was current on child support ( i just reread my decree), and he is not. Granted, the amount of support he pays me is $2.00 a month, and he is 1.5 years behind (we settled on this, all in the finalized decree, signed by the judge in Tennessee). So, what should I do? She lives with him in TN, I am in SC. Is he allowed to claim her these last 2 years, even being in arrears, and defying the court order that I can claim her this season?

    Thank you

  37. You say your daughter lives with Dad and then you say he’s delinquent on paying child support to you. I don’t get it. But in any event, you’ll get nowhere now with IRS. You’ll need to get relief from the judge, and I hope the judge understands this better than I do.

  38. thats how TN. works. Support is based on income vs. amount of time spent with each parent. the days with each parent almost even out, but he makes more money than i do so he pays the 2 dollars a month to me (tennessee is an odd state) So, yes he has never paid me, and is not legally allowed to claim her this year or last for that matter. Suggestions, rights, whats legal?? Thanks again!

  39. In our divorce decree in state of texas. My ex and I came to an agreement of the amount of childsupport he should pay. Now since he has two other children & not doing so well in his job, he wants to lower the amount. Is this possible even though we had an amount agreement…

  40. My ex-husband is about $1,000 behind on child support, I am CP. He asked a couple months ago if he could claim her on his taxes this year, our divorce papers do not specify tax claiming but I do have sole custody. I suspect he figured if he claimed her it would wipe out the amount he is behind and maybe give him a little extra cash as well. I told him absolutely not but he asked for her SS# the other day saying it was for his insurance, I suspect he plans to claim her anyway and try to file before me. Is there anything I can do?

  41. I share joint legal/physical custody of my daughter with my ex-wife, in our divorce decree it clearly states that I will claim the tax exemption, etc… for our daughter for all future years. Do I still need form 8332 if I have a divorce decree signed by all parties?

  42. She has informed me that she has already filed her taxes and claimed our daughter because she feels it is unfair. She is completely aware of the agreement and signed all documents willingly.

  43. He has a right to know his daughter’s Social Security, and you won’t keep him honest by withholding it from him. You just do what you know is right. If Uncle Sam kicks it back, it should be easy for you to explain to them who’s right and who’s wrong.

  44. Got divorced last year with two children. My ex and I each claim one. I had paid all the day care expenses last year, but my ex had over 750 dollars taken out for dependent care benefits, and she used that money for things other than dependent care, because she cannot show any proof of her paying day care. Will the IRS do anything about this

  45. My ex-husband and I have been divorced for 8 years now and have 2 children together. He is in arrears for almost $10,000 plus around $1000 for additional expenses. I am the cp and he very seldome uses his visitation. We have no judgement regarding the exemptions. In a hearing officer conference about 3 yrs ago it was recommended that I claim both children, but never put into a judgement due to him not paying court costs(over $900). I am remarried and have claimed both children always. My ex has been claiming at least one exemption every year since I got remarried in 2004. We are currently being audited all the way back to 2005. I have not filed any taxes since. The guy that does my taxes has been corresponding back and forth with the IRS for years. I recently received my 2005 return which was 1/2 of what is was supposed to be, with no explanation why. My ex just informed my that he has claimed one of my children, again. He is in arrears, and the child support office isn’t doing anything. I have relinquished the state previously to retain a lawyer and went to court. Of course with no luck, since “you can’t squeeze blood from a turnip”. It took the child support office almost 2 yrs to get him back into court for him to agree that he is in arrears and sign a paper for them to receive the money from his employer. It’s very costly to get a lawyer and receive no benifits, but what can I do about the IRS.

  46. Nicole, based on your post, I assume (a) that you and Dad together provide more than 1/2 the children’s financial support, (b) that the children have lived with you for more than 1/2 of each year in question, and (c) that there is no court order specifying which of you is entitled to claim the exemptions. If my assumptions are correct, you are entitled to the exemptions, and no amount of protestation from Dad that he is entitled would matter.

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