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Claiming Children as Dependents After a Divorce

Q: If I’m divorced, can I still claim my children as dependents on my federal taxes?

It can depend on a number of factors, but when claiming any child as a dependent, first make sure she fulfills certain basic requirements of relationship and age set forth by the IRS. 

The child in question must actually be your child or a descendent of your child— whether through birth, adoption or a foster parenting situation. Additionally, the child can be a sibling, half-sibling or step-sibling, or a descendant of any of these. 

He must be younger than 19, or 24 if he is a full-time student, and also younger than you. If your child is permanently disabled, you can claim him as a dependent regardless of his age. 

Aside from relationship and age, the IRS looks to the child’s residency throughout the year. 

Normally, you can claim a child as a dependent as long as she resided with you for more than half of the year. Of course, in shared custody situations, this can be a more complicated consideration. 

Generally, the residency requirement means that the parent with primary custody of the child will be able to claim him as a dependent. 

A non-custodial parent can, however, claim a child as a dependent if several extra factors are met. 

First, the parents must be divorced, separated under a written separation agreement, or living separately for the past six months. Second, the child must have received more than half of his support over the year from the parents.  Third, the child must have been in the custody of one or both of the parents for more than half of the year. Fourth, the custodial parent who would otherwise be able to claim the child must sign a form declaring that he will not claim that child as a dependent for that year. The non-custodial parent must then attach this declaration to her tax return.

Sometimes, determining which parent is the custodial parent for federal tax purposes is not clear-cut. 

According to the IRS, the custodial parent is the parent with whom the child lived for the greater number of nights in the year. If the parents separated during the tax year in question, and the child lived with both parents prior to their separation, then the custodial parent is the one with whom the child lived for the greater number of nights after the separation. 

In the unlikely event that the child stayed an equal number of nights with both parents, then the custodial parent is the one with the greater adjusted gross income.

This article is intended as a discussion of legal topics that are often confusing to many laypeople—it is not, and should not be relied on, as legal advice. Attorney Jesse White is licensed to practice solely in Pennsylvania and any information discussed relates solely to Pennsylvania law. The hiring of a lawyer is an important decision that should only be made after careful consideration. For more information contact The Law Office of Jesse White in at 724-743-4444 for or visit www.jessewhitelaw.com.

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