Does a Divorce Decree Supersede Claiming a Dependent on my Taxes?

A divorce can make it difficult to determine which parent may claim children as dependents. In most cases, the IRS states that the custodial parent may claim the child, regardless of any child support arrangement. The custodial parent may, however, give up the right to a dependent, either through the divorce decree or through mutual agreement. In either case, a decree or other arrangement may not necessarily supersede the law.

  1. Standard Dependent Rules

    • The IRS has established rules for divorce cases that give dependent children to the custodial parent. Custody is defined as the parent with whom the child spends the most nights, or whose home they claim as their residence if away visiting or at school. In the case of a perfectly equal number of nights spent with both parents, custody is granted to the parent with the highest adjusted gross income. Child support is not a factor in determining custody. If a legal question arises as to who should be the custodial parent, the most recent custody agreement or divorce decree will be honored.


    • The custodial parent may give up a claim to a dependent either through the divorce decree and child custody agreement or through IRS Form 8332. In this case, the parent claiming the dependent must attach the form or the appropriate sections of the divorce documentation. If documentation is used, it must contain the custodial parent's Social Security number and a statement that the noncustodial parent may claim dependents. The document must be signed and dated by the custodial parent and should list the names of the dependent children as well as the years for which the agreement is effective. Documentation that does not fulfill these requirements will not be acceptable and cannot trump the standard rules.

    Deductions and Credits

    • The parent claiming the child as a dependent may take advantage of the following exemptions, deductions and credits: Head of Household filing status, the child exemption, earned income and child tax credits, dependent care credit, and income exclusion of dependent care benefits.


    • As of 2012, custodial parents may revoke the claim release granted through a Form 8332 or other documentation at any time. For this reason, many experts advise that a current version of the Form 8332 accompany taxes each year.

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