Many people going through a divorce have questions come tax time as the financial changes their family has gone through become clear. When and how a person can claim a child following a divorce can depend on a number of factors. The first step before you claim a child as a dependent is to make sure he or she fulfills certain basic criteria, all of which are set forth in IRS regulations.
First, and most obviously, the child in question must actually be your child or a descendent of your child. This does not mean the child must biologically be yours. It can mean either through birth, adoption or foster parenting. The child in question is also allowed to be a sibling, half-sibling or step-sibling, or a descendant of any of these.
The child being claimed must also be younger than 19, or 24 if he or she is a full-time student, and must also be younger than you (something that shouldn't be much of a problem). The only caveat to the age requirement is if your child is permanently disabled, in which case you can claim him as a dependent regardless of his age.
Beyond these two fairly simple factors, the IRS also looks to the child's residency throughout the year. Typically, you are permitted to claim a child as a dependent if he or she resided with you for more than half of the year. Of course, in shared custody situations, this can become tricky. The residency requirement means that parents with primary custody of their child will be the ones that are able to claim the kids as dependents.
There are, however, situations where a non-custodial parent can claim a child as a dependent if several additional factors are met. First, the parents must be legally divorced, separated under a written separation agreement, or living separately for at least the past six months. Second, the child must have received more than half of his financial support over the year from either one or both 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 typically be able to claim the child must sign a form declaring that they will not claim that child as a dependent for that year's taxes. The non-custodial parent must then attach this declaration to her tax return.
Determining exactly what "non-custodial parent" means can be confusing. According to IRS rules, the custodial parent is the parent with whom the child lived for the greater number of nights over the span of that 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 post-separation. In the rare event that a child spent exactly the same number of nights with each parent then the custodial parent is deemed to be the one with the greater adjusted gross income.
If you find yourself facing the prospect of divorce, you need to contact an experienced Charlotte family law attorney who can help guide you through the confusing process.
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