My spouse and I are divorcing fairly amicably. I am paying guideline child support. Our four year old child will be with mother 70 percent of the time and with me 30 percent. Our draft agreement says we have joint legal and joint physical custody with a time schedule in the agreement. Can we both claim our daughter as a tax deduction. I imagine my wife would be able to claim head of household, but can claim any tax deduction?
Only one parent can claim the child each year. It is the custodial parent who can claim the child. Generally, the custodial parent is the parent with whom the child spends the most nights during the year. Under a special rule you can specify who can claim the child each year on his/her tax return. Many couples alternate years claiming the child. It would be a good idea to specify in the divorce agreement who can claim the child each year.
Since your spouse will have custody 70% of the time, she is custodial parent and can claim the child under the general rule. You may claim the child if your spouse completes Form 8332 which waives her right to claim the child in any given year. This form would have to be filed with your tax return each year you claim the child.
Your spouse would file as head of household even in the years she doesn't claim your child. You would file single with and without claiming the child.
Certain tax credits (such as the child tax credit) will be claimed by whoever claims the child. Other credits (such as the earned income tax credit) will remain with the custodial parent. Talk to your tax practitioner for more details.
Any information given is general tax information and may or may apply in your specific situation. Please consult with an attorney or other appropriate professional to determine how any advice may apply in your specific situation.
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Family Law Attorney
You can agree or seek an order that one of you gets the deduction in odd years and the other in even numbered years.
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