Ask A Divorce Lawyer: Who gets to claim our daughter on their taxes this year?


My ex and I have joint legal custody. In 2005 I gave him primary physical custody so he could spend his time raising our daughter. He put her through school and paid for all of her expenses, so I gratefully gave him all the income tax for every year he had her.

We decided on no child support because we both have her equal amounts of time; I have her every day she is not in school. Last year she moved in with me but I did not have the paperwork changed to show that I had primary physical custody. Since I had her in school I paid all her expenses and asked him for no child support.

Now that it is income tax season I told him I was going to file her on mine since I had physical custody and he paid no child support. He says that because I did not change the paperwork it is illegal for me to claim her. I say I should get the income tax and that he gave up his primary physical custody when she moved in with me. Who is right?





Because each state has different laws relating to claiming children, you should contact a domestic litigation attorney in your state.  When you say that you gave him primary physical custody, do you mean that you went to Court and the Court awarded him primary placement or was this just an agreement between the two of you?  You said that you gratefully gave the tax benefits to him every year, but was this in Court or a private agreement?  If either of these were in a Court Order, either through a stipulation or as a result of a hearing, the Court Order controls.  If everything you said above was in a Court Order, he has the right to primary placement and the tax benefits on an annual basis.  If these agreements since 2005 have all been just agreements between the two of you, then the original Court Order controls.  If this is the case, you should consult a domestic litigation attorney licensed in Alabama to find out how you can get a Court Order to reflect the current placement and support arrangements.

In reference to federal 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 the Court Orders from your case 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.  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.

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