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Can non custodial parent claim a child on their tax return.

Knoxville, TN |

Im a non custodial parent by the courts, but I have my son for about eight months now. I have a court order for child support that I pay. Both me and the custodial parent agreed not to change anything in court, until he finish his 1st year of school. I want to claim my son on my taxes, but i wanted to be sure if I could do that.If so, will I need a letter from the custodial parent stating that our child lives with me. Also, can I get audited by the IRS for doing that, if I receive the tax credit?

Attorney Answers 3


If you provide more the half of the support for the child then you can claim them on the tax retrn, but only one parent may claim the child in any tax year.

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Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.

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If the child lived with you more than half the year, you are entitled to claim him as a dependent. Since the child lived with you most of the year, you do not need your ex to fill out any form. If your ex was to claim the child, she would actually need you to fill out an IRS Form 8332.

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. Answering this question does not create an attorney-client relationship or otherwise require further consultation.

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If a non-custodial parent pays enough child support, so it covers more than half the child's living expenses, that parent may claim the child as a dependent on his taxes by filling out and attaching IRS Form 8332 to his federal tax return.


Obtain agreement from the custodial parent. She must sign the release form in Part I at the top of Form 8332, agreeing to allow the non-custodial parent to claim the child as a dependent for the current fiscal year. Fill in the child's name and the current tax year and have the custodial parent sign and date the form. She must also provide her social Security Number where required.

Have the custodial parent release any claim of dependence for the child for any future years. This is strictly optional and is not required for the non-custodial parent to claim the child as an exemption for the current year. However, if both parents expect that the non-custodial parent will provide more than 50 percent of the child's living expenses in subsequent years, filling out this section is an easy way to release tax exemption to that parent on a long-term basis.

Fill out Part III with the custodial parent if there is a year in the future for which you do not expect to provide more than half the child's living expenses. This part is also optional and not necessary for claiming a child on the current year's tax return.

Claim your child as a dependent on your taxes. This process is identical to what it would be if you were the custodial parent claiming the child as an exemption. Ensure that you include the child's accurate Social Security number, as the IRS uses this to cross-reference information on both parents' tax returns.

Attach a copy of your divorce decree to your tax return. According to federal tax law, if the court issued your divorce decree specifying that you pay more than half the child's living expenses in child support and your divorce was finalized prior to 2009, you may be able to simply attach a copy of the decree to your tax return, instead of filling out Form 8332. The decree must include both parents' Social Security numbers, the years for which the non-custodial parent will pay the majority of the child's living expenses and a signed release form from the custodial parent stating that she will not claim the child as a dependent on her own taxes.

6) Attach all required forms to your federal tax return and mail them as a package to the correct address.

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The information in this answer is for general information purposes only. Nothing on this communication should be taken as legal advice for any case or situation. Nothing herein is intended as legal advice. You should not rely upon any information as a source of legal advice, and your receipt or viewing of any such information does not create an attorney-client relationship between you and James E. Pratt.

IRS Circular 230 Disclosure: To comply with requirements imposed by the IRS, we inform you that any U. S. federal tax advice contained herein (including any attachments), unless specifically stated otherwise, is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter herein.

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