It is tax season! You are now a divorced mother or dad. Who will claim Jose on their taxes after the divorce? Many parents often wonder whether they have the right to claim their child or children as dependents on their tax return. Some parents believe they have the right to do so if they have custody of the child – but this is not always correct.
Custodial Parent Claims Child as tax Dependent
Generally, the custodial parent is the one who claims the child on their tax return, unless there is a custody agreement that says otherwise. A custodial parent is the parent who the child spends most of its time with during the tax year. Although you may have a shared custody arrangement with the other parent, the other parents may spend more time with the child, thus giving them the right to claim the child as their dependent.
Can parents take turn claiming child taxes? Taxes with Joint Custody
You may ask who claims the child when both parents have joint custody (i.e. equally sharing custody of the child)? In this situation where both parents have equal time or custody with the child, you will look to the Divorce Settlement, parenting agreement or consent order to determine which parent is allowed to claim the child. This issue of who claims the child on the tax return is usually addressed in a divorce settlement, shared parenting agreement or a consent order. For example, the language in a divorce settlement agreement would be “Husband shall be allowed to claim the minor child as a dependent on his tax returns in 2022 and every even numbered year. Wife shall be allowed to claim the minor child as a dependent on her tax return in 2023 and every odd number year.”
Who claims the child as a tax dependent if the parents were never married?
Generally, unmarried single mothers have the right to claim the child as a dependent on their income taxes; Unmarried fathers cannot claim the child on their income taxes. It is important to note as the baby father you may not claim a child on your tax return because you feel you have an entitlement as the child’s father. Like a divorced father, you must either be the custodial parent or have an equal shared physically custody arrangement, with a one major difference. The unmarried father must first establish paternity. Once paternity has been established, like the mother, the child’s father may be able to claim the child as a dependent once he has been declared the legal father, then either become the primary custodial parent or have an equal share physical custody arrangement with the mother.
Child Custody Order
Any time children are a part of a divorce, it is important to address this issue in the custody order. It is especially important to determine who will file for the child on the tax return as it prevents confusion and future conflicts. If you are modifying your child custody order, you want to make sure that this is addressed in the modification.
To learn more about child custody and taxes in a divorce, please contact the Law Office of Dahlia Castillo, PLLC at 910-484-3245, to schedule a confidential consultation with Attorney Castillo, with offices in Fuquay Varina and Fayetteville, North Carolina. We represent clients in Cumberland, Harnett, Hoke and Wake Counties, North Carolina.
