My ex and I have 50/50 shared custody of our son. We have no existing agreement regarding taxes in our divorce documents. The past 2 years we have come to an agreement between us on how to handle it, however with my family situation changing recently, I would prefer to alternate years. When I brought that up, however, he said, "By default, the exemption goes to the person with the highest income, so it's my call." (He makes more than I do.)
I would like to know if this is indeed the case. I had someone else tell me that it is more to do with counting the number of actual days the child was with each parent and the parent with more days (even if it's only a matter of a couple of days) is the one that can technically claim the child. What does the IRS base it on if both parents claim?
You are both correct. You must first look at the number of days. The parent that has over 50 percent of the time is the custodial parent and gets the deduction. The income rule is the tie breaker if the number of days are equal.
Any individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.
Family Law Attorney
Under IRS rules, the parent that has the child the majority of the year gets the exemption. Honestly, though, your decree should be amended to provide for who gets it - alternating is a typical provision. If you both claim the exemption on separate returns, you'll both get audited.
This answer is not to be considered a response to a specific legal issue in a specific jurisdiction - it is to be considered only a general response to a hypothetical scenario posed by the questioner. For specific legal advice, please consult with a licensed attorney in your jurisdiction.
General Practice Lawyer
I echo Mr. Corbin’s sentiments. Your decree should be amended so that the exemption alternates year to year.