After the Divorce: When Your Ex-spouse Claims Your Child on a Tax Return

Taxes

Filing taxes after the divorce can be a tricky situation. In many cases, the agreement you sign during a divorce or child custody case will outline which parent can claim a child on a tax return. Understand the potential implications and what to do when a spouse who isn’t supposed to claim your child does. 

Claiming a Child After The Divorce

Frequently, parents who share custody have questions about divorce and filing taxes. They will specify clearly in their court orders whether one parent claims the children for tax purposes or if both parents do so after the divorce. This can be done by alternating even and odd years. If the parents alternate, then one of them must fill out an IRS Form 8332 releasing the exemption to the other parent for that year.

In the situation where both parents try to claim a child for tax purposes after the divorce, the first parent who filed is likely to keep the exemption while the other parent may have to file a modified tax return without the claim. It is helpful to be well-versed in the most current Federal tax law before filing your taxes.  

The Internal Revenue Service (IRS) provides information and forms on its website for taxpayers with any questions about dependents and exemptions. While your divorce judgment or custody order may say you have joint custody after the divorce, the IRS follows its own rules and whichever parent spends 50 percent or more time with the child in the last six months of a year is the custodial parent for claiming the tax exemption.
There are, of course, situations where parents spend time equally with the children, so there are different factors the IRS considers in who claims the exemption. An important consideration is that the person with higher income is most likely to be allowed to take the exemption when there is equal parenting time.  

What To Do If This Happens After The Divorce 

Your options when facing this situation, particularly if you are the one who, by IRS rules should take the exemption, is to take your case back to court after the divorce has been finalized to seek a ruling and an order specifying who claims the children and when.

This order should also include specific language about completing and sending in Form 8332 each year. And, because you may face interest and penalties when the IRS finally notifies you of the problem, you could seek sanctions and possibly attorneys fees from the non-qualified parent.   

Keep good records on the time you spend with your children and if at all possible, make an agreement with the other parent to settle the issue of who can claim the child as a dependent without having to go to court. If this is not possible, you could be forced to file a motion seeking the court’s help in deciding the issue.

Your San Diego family law attorney can give you solid advice and assistance on this matter.  

Contact Us for Legal Assistance 

Questions about filing taxes after the divorce are common. The attorneys at JWB Family Law are experienced in helping San Diego families navigate through this issue. Our staff can provide you with the necessary assistance to ensure your tax filing process goes smoothly after divorce.

Contact our office today to schedule your discreet consultation at our San Diego location.

The Importance of the CFLS Designation

A Certified Family Law Specialist, or CFLS, is an attorney who has obtained certification in the standards of California family law and demonstrated optimal legal competence. Attorneys who obtain this certification have specific expertise in all aspects of family law, which includes divorce or the dissolution of marriagechild and spousal support, child custody, and temporary restraining orders, among other areas of emphasis.

Not every attorney practicing family law has obtained this certification. In fact, the designation remains relatively rare—there are fewer than 2,000 CFLS attorneys in California and fewer than 200 in San Diego.

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