Following a divorce or separation, parents need to determine who will claim their children on their taxes. As the Internal Revenue Service (IRS) explains, only one parent can claim a child on their taxes. If both parents try to claim a child, it will cause problems. In this article, our Texas child custody lawyers explain the most important things separated parents need to know about the rules for who can claim a child.
The Parent Who Has Primary Physical Custody Has the Right to Claim the Child
Under IRS rules, the parent who has primary custody of a child has the first right to claim that child on their tax return. For example, if your child spends 75 percent of their time with you and 25 percent of their time with the other parent, then you have the right to claim your child on your taxes. When primary custody is clear, there is little dispute over who has the right to claim the child.
Tiebreaker: Parent with Higher Income Should Claim the Child
In some cases, parents have a genuine 50-50 custody arrangement in place. The IRS has developed a basic tiebreaker rule to deal with this: The parent who has a higher income for the tax year in question should claim the child. Often, the parent with the higher income will gain a larger tax benefit from claiming a child. This can free up some extra money in tax savings, which can be used to support the family as a whole.
It May Be Financially Advantageous to Allow the Non-Custodial Parent to Claim a Child
To be clear, a parent with primary custody does not necessarily have to claim their child on their taxes. In some cases, it will be advantageous for both parties to have the non-custodial parent claim the kids. For example, if the custodial parent has relatively little taxable income — at least in comparison to the non-custodial parent — they may not be able to fully utilize the benefits of child tax deduction and child tax credits.
In this situation, both parents can attach Form 8332 to their tax return. By doing so, they will be able to seamlessly allow the non-custodial parent to claim the child. Transferring the right to claim a child will sometimes free up some additional tax savings — which can be split between the parties or used to directly support the child. You do not want to leave money on the table: Make sure you and your former spouse/partner are using tax child deductions/credits in the most effective manner.
Frequently Asked Questions About Claiming Children On Taxes After Divorce
Who gets to claim the child as a dependent after a divorce?
Generally, the custodial parent—the parent with whom the child lives for the greater number of nights during the year—has the right to claim the child as a dependent on their tax return.
What if both parents share custody equally?
If both parents share custody equally, the parent with the higher adjusted gross income (AGI) will typically be considered the custodial parent for tax purposes.
Can the noncustodial parent claim the child as a dependent?
Yes, the noncustodial parent can claim the child as a dependent if the custodial parent releases the dependency exemption by signing a written declaration (Form 8332) and providing it to the noncustodial parent.
Can parents alternate claiming the child on their taxes each year?
Yes, parents can agree to alternate claiming the child on their taxes each year, but this arrangement must be documented and agreed upon by both parties.
What tax benefits can be claimed when you claim a child as a dependent?
Claiming a child as a dependent can provide several tax benefits, including the child tax credit, additional child tax credit, and credit for other dependents.
What if the custodial parent doesn’t release the dependency exemption?
If the custodial parent doesn’t release the dependency exemption, the noncustodial parent cannot claim the child as a dependent for tax purposes.
How do I determine who the custodial parent is for tax purposes?
The custodial parent is the one with whom the child lives for the greater number of nights during the year. If the number of nights is equal, the parent with the higher AGI is considered the custodial parent2.
What if the parents disagree on who should claim the child?
If parents disagree on who should claim the child, they may need to seek legal advice or mediation to resolve the issue. The court can also make a determination if necessary.
Are there any exceptions to the general rules for claiming a child as a dependent?
Yes, there are special rules for children of divorced or separated parents, as well as for children who are not the taxpayer’s biological child but meet the qualifying child rules.
Where can I find more information about claiming children on taxes after divorce?
You can find detailed information in IRS Publication 504, “Divorced or Separated Individuals,” and IRS Publication 501, “Dependents, Standard Deduction, and Filing Information.
Get Help from Our Texas Family Lawyers Today
At Orsinger, Nelson, Downing and Anderson, LLP, our Texas family law attorneys are committed to protecting the financial interests of our clients. Our lawyers are consistently ranked among the best divorce and custody attorneys in the state. To arrange a strictly confidential initial consultation, please contact our legal team at (214) 273-2400. With offices in Dallas, Frisco, Fort Worth, and San Antonio, our family law practice serves clients throughout Texas.
(Updated 1/31/2025)