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Who gets to claim a dependent for tax purposes when parenting time has changed since a divorce agreement?

Kalamazoo, MI |

Several (5) years ago my ex and I agreed that we would claim our son every other year on our taxes. As of the last three years he has only had him on every other weekend. Can he still claim him if I am the custodial parent and have him the majority of the year?

Attorney Answers 4

Posted

The answer to this question lays within your Judgment of Divorce. If your Judgment contains a provision that each of you are awarded the dependency exemption in alternate years, then this provision is enforcable by the court, even if there has been a parenting time change. You would need to modify that provision in your Judgment eliminating his right to claim your son every other year. If your Judgment is silent on this point, then by law (IRS regulations) you as the custodial parent where the child resides more than 1/2 of the year automatically recieve the dependency exemption. In order for the non-custodial parent to claim the exemption (in any year) there is a form that you must complete and sign for him to file along with his tax return. I hope that this helps.

Alisa A. Peskin-Shpeherd
248-290-0560

Please note: the information provided is topical and of a general nature for informational purposes only. The information provided does not represent an offer of representation, and there is no binding agreement between parties. A contract for representation can only be entered into after consultation with our attorneys and signature of a service contract by both parties.

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Posted

The answer is "it depends." If the judgment awards your ex the unqualified right to claim the dependent tax exemption for your child every other year, without specifying that the agreement is tied to a particular amount of time spent with the child, I would expect that is a non-modifiable and enforceable property settlement provision of your judgment. On the other hand, if it was an agreement between the two of you that was not included in the judgment and therefore is not court-ordered, you are not required to assign the exemption to him at all, as the exemption follows the child's residence. Your best bet is to have your judgment reviewed by an experienced family law attorney to get a qualified opinion based on the language in your judgment.
Laurel Stuart-Fink
(248) 626-5450

This comment is designed for general information only, and should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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Posted

Hi, The key is the judgment of divorce. If your divorce judgment says that you claim your son every other year than that would govern. If the divorce judgment is silent then you can claim your son because you have primary custody. Good luck to you.

Henry Gornbein

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If I were in your shoes, I would take the judgment and have it reviewed by an experienced divorce lawyer. The lawyer should be able to sort out the judgment language and the issues quite quickly.

I am licensed to practice law in Michigan and Virginia and regularly handle cases of this sort. You should not rely on this answer. You should consult a lawyer so you can tell the lawyer the entire situation and get legal advice that is precisely tailored to your case.

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