Ask A Divorce Lawyer: Can I claim my son on my tax returns even though my ex has claimed him for the past two years?


I am divorced. My son lives with me. My ex claimed our son on her income tax return for the two years that he has physically lived with me. Neither of us pay support to the other. Can I claim my son on my returns and will my ex have to repay the government?





Generally, the custodial parent is supposed to have the right to claim the child on his or her tax returns.  The IRS has specific codes which determine who can claim a child.  In addition to deductions and credits, if the parties are not married, the parent with more than 50% of placement may be able to file as head of household (other criteria apply).  The parties can agree or the Court can Order the parties to alternate the benefits by year or award all tax benefits to one party.  The first thing you should do is refer to your divorce decree for any provisions relating to the dependency exemption and other tax benefits.

The tax benefits are meant for the person(s) who supports the child.  However, only one person can claim the child in a given year.  When two people claim the same child, the IRS will audit both tax returns.  Tax laws are outside of the scope of my practice.  Therefore, you should contact a tax professional regarding your situation and to find out what you can do about the tax benefits for the past two years.

In order to avoid the confusion in the future, the parent not claiming the child should be required to sign IRS Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents for the child for each and every applicable year.  If your spouse is not willing to sign the form, you should contact a domestic litigation attorney licensed in Oregon to find out how you can go about obtaining an Order requiring her to sign. 


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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