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Joint custody agreement, with each parent filing the child as a dependant every other year. If the child now lives with

Houston, TX |

only one parent all year, does that parent have the right to file the child as a dependant even though the divorce papers say its the other parents turn to file? Or do you have to have a court order to do so? The other parent refuses to let them take her turn even though she has only had the child 7 nights out of the whole year. Please advise.

Attorney Answers 2


I actually think you can claim the child but you may be held in contempt of court.

Here is what the IRS has to say about it:

General Rule:

To File With a "Qualifying Child", the Child Must Pass All of the Following Tests:

◦A son or daughter (including an adopted child or child placed for adoption)
◦Foster child placed by an authorized placement agency or court
◦Brother, sister, stepbrother, stepsister, half brother, half sister or a descendant of any of them
•Age, at the end of the filing year, the child was:
◦Younger than the worker (or the worker's spouse if married filing jointly) and
■younger than 19,
■or, younger than 24 and a full-time student
◦Any age if permanently and totally disabled
◦Child must live with the claimant in the United States for more than half of the year.
•Joint Return
◦The child can not have filed a joint return, unless the child and the child's spouse did not have a filing requirement and filed only to claim a refund

Tie Breaker Rule:

A qualifying child cannot be used by more than one person. If a child qualifies for more than one person and one of the persons is a parent or parents, the non-parent can claim the child only if their AGI is higher than the parent(s). If the child qualifies another relative and the parent AGI rules do not apply, the taxpayers choose. If more than one person claims the same child, IRS applies the tie-breaker rules.

•If only one of the persons is the child's parent, only the parent can treat the child as a qualifying child.
•If two of the persons are parents of the child and they do not file a joint return together, only the parent with whom the child lived the longest during the year can treat the child as a qualifying child.
•If two of the persons are parents of the child and the child lived with each parent the same amount of time during the year, and the parents do not file a joint return together, only the parent with the highest adjusted gross income (AGI) can treat the child as a qualifying child.
•If none of the persons are the child's parents, only the person with the highest AGI can treat the child as a qualifying child.

I offer free consultations and am quite familiar with family judges in Harris County and nearby counties.


Mr. Dick is licensed to practice law in Texas and office located in Harris County. His phone number is 832-207-2007 or 713-510-4500 or his email address is listed below.

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Further to Mr. Dick's information from the IRS web site (,,id=133298,00.html), you might consider this:

A state court judge does not have the authority to modify IRS regulations or IRC laws. There is a Supremacy Clause issue there. What a state court judge can order you to do is that each parent file an IRS form 8332 ( when it is the OTHER parent's turn to claim the child.

In other words, let's say by IRS rules, MOM should claim the child each year. However, in the final order, the judge orders that the parents claim the child every other year with MOM claiming in even years and DAD claiming in odd years. This means that in even years, MOM claims the kid and DAD better not, because it would be tax fraud. It also means that in odd years, MOM needs to file an IRS form 8332 in favor of DAD and let DAD claim the kid.

Final decrees hardly ever have this kind of language in them, but I would expect a court to find that such an arrangement was implicit in the court's order and that if the parents refuse to follow the protocol, the non-following parent is in breach of the agreement OR in contempt of court, depending on how the final decree is worded.

Consider this: If it's your year to claim the child, file your tax return--at least an estimated return--on the same day that you get your final paycheck for the prior year. Don't wait for W-2, 1099, etc. Just file, pay any estimated taxes due, and claim the child. Then, when your W-2 and 1099 come in, file an amended return. This will block the other parent from wrongfully claiming the child.

In other words, don't complain or try to negotiate with the other parent--take control of the situation.

*** HOWEVER *** before you try this trick, you must, must, must talk to a CPA or other tax professional to make sure you don't run afoul of the law. I am not a tax attorney and I can't give you tax advice. You need to get that from a person who you pay to give you specific tax advice based on your particular facts.

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