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My ex and I have 50/50 custody. Who gets to claim the kids on their taxes?

Whittier, CA |

We recently had change in custody. We now have 50/50 custody. The previous court order did not mention who gets to claim the children as dedpendents per tax year. What recommendation do you hav for this problem?

Attorney Answers 5


  1. Standard orders have the parents alternate every years (i.e., mother in odd numbered years; father in even-numbered years). So it's clear, I would suggest having a court order.

    If either of you have a lawyer, I would suggest having your lawyer prepare the paperwork.


  2. The short answer is this: To claim a child there can't actually be "50/50" timeshare unless one parent gives the other parent the deduction (IRS Form 8332). That's why most 50/50 arrangements are written as "49.99/50.01." This is because to claim a child the parent must have "more than" 50% custody. As a practical matter, we are talking about an IRS audit here, which might not happen (won't happen on this issue, in fact) unless you both claim the kids, so the best you can do is talk to the other parent about this and try to come to an agreement. If that doesn't work, you should actually sit down and track when the kids were withe each parent over the year and see who actually had them more than 50% of the time (regardless of what the order says, the IRS will go off of actual time spent). Also note that I am not a tax attorney, and there may be some points here I am missing, so if possible you should consult with a tax lawyer or at the least a CPA. Good luck.

    Marshall Waller may be reached at 800-655-4766 or by email at: mwaller@lectriclaw.com. Follow him on Twitter: @feinbergwaller. Responses to questions posted by Mr. Waller on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and the response to the question above is not legal advice and it does not create an attorney-client relationship. If you would like to obtain specific legal advice about this issue as it pertains to your particular situation you must contact an attorney who is licensed to practice law in your state.


  3. If your orders do not say who gets the deduction then you should ask the court for an order on this subject or enter into a stipulation with the other parent.

    Best of luck to you.

    Attorney Rebekah Ryan Main

    If you found this answer helpful, let me know by clicking the "Mark as Helpful" button at the bottom of this answer. It’s easy and appreciated.

    This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges.

    This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges.


  4. It is usually dictated by the agreement of the parties or order of the court. You do need to be cognizant of the specific requirements of the IRS.

    This content is informational only and does not establish an attorney-client relationship.


  5. I agree with my colleagues and suggest you talk to an attorney to get specific advice on this matter.

    I have been licensed to practice in the State of Oregon since 1990. I am not offering legal advice regarding your question, only general information regarding the law. You are not my client nor am I your attorney unless we sign a retainer agreement.

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