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Which parent is entitled to claim our son as a dependent for tax purposes?

Long Beach, CA |

My son is 19 months old. He has lived with me for the past 15 months and I have not received any child support up to this point. However, I was able to recently come to an agreement with his father on a monthly amount he will be contributing to our son's financial support as well as a consistent visiting schedule. It will start this month so I still have not seen the first check. Clearly our son qualifies as my dependent for the past year, but his father did mention he wanted to claim him for the following years. The amount we agreed upon monthly is appropriate and definitely not excessive and he only sees his son about twice a week (not full days). Please advise me on how to handle tax season in regards to dependancy.

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Attorney answers 3

Posted

For your federal tax return to the IRS, the child must live with the claiming taxpayer for at least half the year to satisfy the residency test which seems to have been met for you this past year. Unless there is a written legal agreement to the contrary, it's doubtful the father will be able to satisfy all the tests required to claim your son as a dependent with mere visitation for future years.

For your information, the IRS requires all of the following tests must be met to claim a dependency exemption under the rules for a qualifying child.

Dependent Taxpayer Test — Qualifying Child
If you could be claimed as a dependent by another person, you cannot claim anyone else as a dependent. Even if you have a qualifying child or a qualifying relative, you cannot claim that person as a dependent.

Joint Return Test — Qualifying Child
To meet this test, the child must be:

- Unmarried,
- Married but does not file a joint return, or
- Married and files a joint return only to claim a refund of withheld tax, neither the dependent nor spouse can claim personal exemption on their joint return

Citizen or Resident Test — Qualifying Child
To meet this test, the child must be:

- A U.S. citizen or resident or
- A resident of Canada or Mexico

Relationship Test — Qualifying Child
To meet this test, the child must be:
- Your son, daughter, stepchild, eligible foster child, adopted child, or a descendant (for example, your grandchild) of any of them, or
- Your brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant (for example, your niece or nephew) of any of them.

Age Test — Qualifying Child
To meet this test, the child must be:
- Under age 19 at the end of the year
- A full-time student under age 24 at the end of the year, or
- Permanently and totally disabled at any time during the year, regardless of age.

Residency Test — Qualifying Child
To meet this test, the child must:
- Have lived with you for more than half of the year
- Meet one of the exemptions listed below:
- Temporary absences — illness, education, business, vacation, or military service
- Death or birth of child — a child who was born or died during the year

Support Test — Qualifying Child
To meet this test, the child must:
- Not have provided more than half of his or her own support

There are special rules for a child that is the "qualifying child" of more than one person. Do research or get professional advice if you encounter this situation.

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The information in this answer is for general information purposes only. Nothing on this communication should be taken as legal advice for any case or situation. Nothing herein is intended as legal advice. You should not rely upon any information as a source of legal advice, and your receipt or viewing of any such information does not create an attorney-client relationship between you and James E. Pratt.

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Posted

Mr. Pratt leaves no room to improve upon his excellent answer. Under the facts you have given, he is your dependent. You do not say if you and the father divorced or not. Often, the issue of who claims dependency credit is dealt with in a dissolution order. If there is no dissolution, then the issue will follow as Mr. Pratt so detailedly pointed out.

Posted

Generally speaking, the child of parents who live apart is considered the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the noncustodial parent if all four of the following requirements are met:
(1) The parents: a) Are divorced or legally separated under a decree of divorce or separate maintenance, b) Are separated under a written separation agreement, or c) Lived apart at all times during the last 6 months of the year, whether or not they are or were married;
(2) The child received over half of his or her support for the year from the parents;
(3) The child is in the custody of one or both parents for more than half of the year; and
(4) The custodial parent signs a written declaration that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return.

The custodial parent is the parent with whom the child lives for the greater number of nights during the tax year. If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the year. The IRS looks specifically at the number of nights the child sleeps in each parent’s home and/or sleeps in each parent’s company. For more information on this, refer to IRS Publication 17, Chapter 3 on Personal Exemptions and Dependents (link below).

Beginning in 2009, noncustodial parents can no longer just attach pages from a divorce decree or separation agreement. Instead, IRS Form 8332 (link below) or a similar statement with the sole purpose of releasing claim to the qualifying children must be signed by the custodial parent. That form or statement must then be attached to the noncustodial parent’s tax return and submitted each and every tax year.

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I am licensed to practice law in CA & TX, and my office is located in San Diego, CA. I am providing this response for your general information. This response is not legal advice, nor is it intended to be. You should consult an attorney for advice regarding your individual situation. I invite you to contact Rábago Law. However, communication through this website does not create an attorney-client relationship and is not protected by the attorney-client confidentiality rules.