Jasne & Florio, L.L.P. - Limited Liability Partnership
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Can I claim my children on my tax return after a divorce?

Tax season is here once again. Many are relishing the fact that this year they have two extra days before the federal income tax filing deadline arrives. This year it is April 17 instead of April 15.

With that, some divorcees may have questions about their tax filing status (single or married) as well as whether they may claim minor children on their tax returns. After all, federal law allows custodial parents to claim their children as dependents and take advantage of certain tax credits. Some divorce decrees specifically detail who may claim the child (or children). The order may indicate which parent may claim the child for tax purposes, explain that the parties will alternate use of the child tax exemption, or it may direct them to share any refund received as a result of the exemption.

If your decree doesn’t say anything about dependents, you may be able to claim your child if you meet the following requirements:

  • You are filing a separate return from your spouse.
  • You have paid more than half of the cost of maintaining your home for the year.
  • You provided more than half of your child’s financial support last year
  • Your child (or children) have lived with you in your home for the majority of the year.
  • Your former spouse has not have lived in your home at all for at least the last six months of the year.
  • Your child cannot file another tax return with another taxpayer.

Bear in mind that a child may also qualify as a dependent if he or she is 18 years or older but was a student, and made less than $2800 in 2017.

It is not uncommon for filing issues to arise if your ex-spouse claimed your children before you could file your return.  This is largely because the IRS generally does not know who has custody or the authority to claim children as dependents as a matter of law, and will likely reject a second return that claims the same dependents. When these issues arise, an attorney can help you deal with the IRS.

The preceding is not intended to be legal advice. If you have further questions about tax issues, contact a lawyer.

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