Is it now standard for a non-custodial parent to be given the right to claim a child on their tax return?

Asked over 3 years ago - Clarksville, TN

My ex is wanting to change the child support and I am agreeable to that. However, he is wanting to also claim our daughter every year on his taxes even though he only has her for 110 days a year. He makes twice what I make in income. Someone going through a divorce right now has told me that in TN, the non-custodial parent is given this right automatically. Is this correct? Doesn't he get to claim the child support he pays? Do I have any options in fighting this?

Attorney answers (2)

  1. James Elliot Pratt

    Contributor Level 12

    Answered . You need to check with a TN attorney regarding TN law, but federally speaking, the child must live with the claiming taxpayer for at least half the year to satisfy the residency test which does not seem to have been met by merely 110 days a year. For your information, the IRS requires all of the following tests must be met to claim a dependency exemption under the rules for a qualifying child.

    Dependent Taxpayer Test — Qualifying Child
    If you could be claimed as a dependent by another person, you cannot claim anyone else as a dependent. Even if you have a qualifying child or a qualifying relative, you cannot claim that person as a dependent.

    Joint Return Test — Qualifying Child
    To meet this test, the child must be:

    - Unmarried,
    - Married but does not file a joint return, or
    - Married and files a joint return only to claim a refund of withheld tax, neither the dependent nor spouse can claim personal exemption on their joint return

    Citizen or Resident Test — Qualifying Child
    To meet this test, the child must be:

    - A U.S. citizen or resident or
    - A resident of Canada or Mexico

    Relationship Test — Qualifying Child
    To meet this test, the child must be:
    - Your son, daughter, stepchild, eligible foster child, adopted child, or a descendant (for example, your grandchild) of any of them, or
    - Your brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant (for example, your niece or nephew) of any of them.

    Age Test — Qualifying Child
    To meet this test, the child must be:
    - Under age 19 at the end of the year
    - A full-time student under age 24 at the end of the year, or
    - Permanently and totally disabled at any time during the year, regardless of age.

    Residency Test — Qualifying Child
    To meet this test, the child must:
    - Have lived with you for more than half of the year
    - Meet one of the exemptions listed below:
    - Temporary absences — illness, education, business, vacation, or military service
    - Death or birth of child — a child who was born or died during the year

    Support Test — Qualifying Child
    To meet this test, the child must:
    - Not have provided more than half of his or her own support

    There are special rules for a child that is the "qualifying child" of more than one person. Do research or get professional advice if you encounter this situation.


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    DISCLAIMER & IRS Circular 230 DISCLOSURE:

    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.

  2. Donald Erich Lowrey

    Contributor Level 14

    Answered . Yes. The dependency exemption and child tax credit can be taken by your ex, if you agree. You will need to complete and sign IRS Form 8332 "Release of Claim of Exemption for Child by Custodial Parent". He files that form with his tax return (it will need to be a paper return, not e-filed). If the arrangment ever changes, you use the same form to revoke your consent.

    To the extent that you qualify, you will be able to continue to take the earned income credit and child and dependent care credit.

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