Who gets to claim the children on taxes? 

Who gets to claim the children on taxes? 

Parents in child custody cases often have a desire to claim the tax dependency of their children.  The benefit of claiming a child is well known as it stands to increase your tax refund or decrease tax owed; however, my office gets many calls regarding the rules on who gets to clam a child.  I very cleanly break down the question of “Who gets to claim the children on taxes?” in this blog.

The IRS makes the rules.

The first thing a parent should know is that the IRS makes the rules on the issue rather than the Family Court.  In short, federal law is over state law and the IRS regulations are federal law.  Therefore, tax dependency isn’t an issue decided in the Family Court of South Carolina, although this fact doesn’t necessarily stop parents from trying.

What is the IRS rule?

The IRS states that the custodial parent is the parent who is entitled to claim the tax dependency of a child.  They define the custodial parent as the one “with whom the child lived for the greater number of nights during the year.”

Therefore, if you have a child custody order, refer to the number of overnights you have with a child.  If you have 183 overnights or more in a year, then you are entitled to claim tax dependency.

Sometimes parents separate during the course of a year, especially in the case of a divorce.  In this instance, the higher number of overnights still wins.

Can a non-custodial claim a child on taxes?

Yes, if the custodial parent gives his or her permission.

Helpful Links

Below, you will find direct links to the IRS website where you can find the complete rule.  Including:

  1. Link to IRS website listing frequently asked questions on dependents: https://www.irs.gov/faqs/filing-requirements-status-dependents-exemptions/dependents-exemptions

In this link, they answer the specific question of whether a state court can determine who gets to claim the children on taxes.

  1. Link to the IRS website interview to determine whom you may claim as a dependent: https://www.irs.gov/help/ita/whom-may-i-claim-as-a-dependent

 

Please remember that each case is unique and that many factors influence the ultimate custody judgment. Therefore, it is imperative that you consult with an attorney to discuss your unique set of circumstances. If you have any questions about your rights to claim a child as a dependent, divorcechild custody, or family law in general, we urge you to contact us. We have open office hours for client appointments and payment plans available. Contact us today to schedule your free, confidential consultation.

Our law office serves people across the Upstate, South Carolina, including: Greenville, Spartanburg, Anderson, Pickens, Laurens, and Oconee counties.