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CM WHITENER LAW

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Who gets the child tax credit?

Posted by CM Whitener on August 8, 2013 at 12:00 AM


"I am a non-custodial father that pays a non-court-ordered child support monthly. While drafting a child support agreement, me and the mother disagreed on who can claim the child. I requested we alternate years. She's of the opinion as she is the custodial parent, she HAS to be the one to claim her. Is there any truth to this?"


The question as to who has the right to claim dependents is one that arises often in co-parenting situations. Where one parent has primary physical custody and the other provides child support or the parties have joint legal and physical custody, the issue is often a murky one. 

The IRS has specific rules when it comes to guidelines for a "qualifying child of more than one person." Claiming a child for tax purposes comes with a number of tax benefits:

 

 

  • EITC,
  • Dependency exemption for the child,
  • Child tax credit,
  • Head of household filing status,
  • Credit for the child and dependent care expenses, and
  • Exclusion for dependent care benefits.

 

From the IRS:

Children of divorced or separated parents(or parents who live apart). In most cases, because of the residency test, a child of di­vorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the non­custodial parent if all four of the following state­ments are true.

1. The parents:

a. Are divorced or legally separated un­der a decree of divorce or separate maintenance,

b. Are separated under a written separa­tion agreement, or

c. Lived apart at all times during the last 6 months of the year, whether or not
they are or were married.

2. The child received over half of his or her support for the year from the parents.

3. The child is in the custody of one or both parents for more than half of the year.

4. Either of the following statements is true:

a. The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a de­pendent for the year, and the noncus­todial parent attaches this written dec­laration to his or her return. (If the decree or agreement went into effect after 1984 and before 2009, see Post-1984 and pre-2009 divorce decree or separation agreement, later. If the decree or agreement went into ef­fect after 2008, see Post-2008 divorce decree or separation agreement, later.)

b. A pre­1985 decree of divorce or sepa­rate maintenance or written separa­tion agreement that applies to 2012 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the non­custodial parent cannot claim the child as a dependent, and the non­custodial parent provides at least $600 for the child's support during the year.

The IRS further provides tests to determine what level of support a parent provided during the taxable year. (Page 15 of this document has a worksheet to determine your level of support.).  If a noncustodial parent meets the special rules for a shared child, he (or she), may claim the child for certain specific tax purposes (an ex­emption and the child tax credit), but not those with a residencey requirement such as head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, or the earned income credit.

Waiver

The custodial parent has the presumptive right to claim tax benefits of a qualifying child. However, those rights may be waived for a specific tax year or multiple tax years with form 8332: Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent



If you have specific questions with respect to child custody and child support issues contact an attorney licensed in your jurisdiction. The information provided in this North Carolina law site blog is for educational purposes only.

Categories: Custody Questions, Finances, IRS

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