Who Claims the Child on Taxes After Divorce?
For federal taxes, the custodial parent, meaning the parent the child lived with for more nights during the year, generally claims the child. The custodial parent can release the claim to the other parent with Form 8332 or a similar written statement, but that release covers only certain benefits. If both parents claim the same child, IRS tie-breaker rules decide.
What the law says
- The custodial parent is the parent with whom the child lived for the greater number of nights during the year. IRS Publication 504, Divorced or Separated Individuals
- If the child spent an equal number of nights with each parent, the parent with the higher adjusted gross income (AGI) is treated as the custodial parent. IRS Publication 501, Dependents, Standard Deduction, and Filing Information
- Under the rule for divorced or separated parents (or parents who live apart), the child must have been in the custody of one or both parents for more than half the year, and the parents must meet one of the separation tests. IRS Publication 501, Dependents, Standard Deduction, and Filing Information
- The custodial parent can release the claim to the noncustodial parent using Form 8332 or a similar statement, and the noncustodial parent must attach a copy to their return. IRS Publication 501, Dependents, Standard Deduction, and Filing Information
- Form 8332 can also be used by the custodial parent to revoke a previous release. IRS, About Form 8332
- With a release, the noncustodial parent can claim the child as a dependent and for the child tax credit, credit for other dependents, or additional child tax credit, but not head of household filing status or the earned income credit based on that child. IRS Publication 501, Dependents, Standard Deduction, and Filing Information
- Only the custodial parent can claim the credit for child and dependent care expenses or the exclusion for dependent care benefits. IRS Publication 501, Dependents, Standard Deduction, and Filing Information
- If parents filing separately both claim the same child, the child is treated as the qualifying child of the parent the child lived with longer; if the time was equal, of the parent with the higher AGI. IRS Publication 501, Dependents, Standard Deduction, and Filing Information
- A Form 8332 release doesn't apply to other tax benefits such as head of household status, the earned income credit, or the dependent care credit. IRS Publication 504, Divorced or Separated Individuals
FAQ
We have 50/50 custody. Who claims the child?
If the child spent an equal number of nights with each parent, the parent with the higher AGI is treated as the custodial parent.
Can the parent the child doesn't live with claim the child?
Only if the custodial parent releases the claim with Form 8332 or a similar statement, which the noncustodial parent attaches to their return.
Can a released claim be taken back?
Yes. The custodial parent can use Form 8332 to revoke a previous release.
If I sign Form 8332, can I still file as head of household?
The release does not allow the noncustodial parent to claim head of household status, and IRS Publication 501 says the custodial parent generally can still treat the child as a qualifying child for head of household purposes.
Related
- Contested vs. Uncontested Divorce
- Do I Need a Lawyer for a Divorce?
- How Long Does a Divorce Take?
- How Much Does a Divorce Lawyer Cost?
- How to File for Divorce, Step by Step
- Is Child Support Taxable?
- Joint vs. Sole Custody: What's the Difference?
- What Is a Divorce Decree?
- What Is Common-Law Marriage?
- What Is a No-Fault Divorce?
- Divorce & Family Law by state
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.