Question: My daughter’s dad, who I never married and my daughter doesn’t live with, wants to claim her on his taxes.
Can he do that? He is the legal father but we weren’t married and she hasn’t lived with him in 16 years.
Answer: First, I must preface that I do not practice in your jurisdiction. You should contact an attorney licensed in Alabama when deciding how to proceed.
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 the paternity judgment 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. Although the child is not living with him, if he is paying child support he is providing support for the child. As such, the Court could make orders allocating the right to claim the child on tax returns.
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. Therefore, once the issue is resolved, 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.
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.