The IRS allows the person with the most "custodial" time with the child to claim the child.
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The law allows the Court to consider the effect of the exemption. Depending on the facts of the case, you could ask the Court to award you that exemption. I would not suggest claiming your daughter unless you had her more than 50% of the time
Russell G. Marlowe, New Port Richey, Florida (727 847-0055. Mr. Marlowe is an attorney with 24 years experiences who practices primarily in the family law courts. The answer provided is for educational purposes only. It does not constitute legal advice or create an attorney-client relationship. You should consult an attorney for legal advice regarding the facts of your specific case and designed to help you with your personal needs
The individual that has the child the majority of the time is generally the one that claims the child but you and your Wife can always agree to something else. Make sure you obtain a court order on this agreement.
You should follow what the court has stated in a divorce decree but since your question states that you are currently still going through a divorce then that has probably yet to be determined. You should follow the rules which state that the child has to live with you for more than half of the year and you must have provided more than half of his or her own support.
If the IRS accepts your return and does not have a problem with you claiming your child then this is a civil matter that would have to be taken up with the court system. Many divorced couples have outlined in their divorce decree which years they are allowed to claim the child(ren). If a parent claims a child when it is not their year then the one parent would have to take the other to court. I hope this helps out and if you need further clarification please contact us at 888.741.0272 or at firstname.lastname@example.org. Thanks!