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Quick Answer:

When can I claim my children on my taxes after my divorce?

If you know your ex well enough that you are certain you will never have a problem deciding who will be able to claim your child year after year, then you may be able to successfully forgo having your divorce lawyer prepare an agreement which will automatically relieve you of worry at tax time each year. Will you run that risk?

When it’s time to file one’s income tax return and you and your spouse (or your ex) have kids, life can get interesting. If there is no professionally prepared marital settlement agreement, the rule is that the parent who provided over half of the financial support for a child is entitled to claim that child as a dependent. Sounds quite simple, does it not? As a practical matter, the parents can argue endlessly over who provided more than half. For example, take the common situation where the mother has the child 95% of the time and the father is paying a decent amount of child support to the mother every month and never misses a payment. The father might assert that his support payments cover all of the kid’s needs and then some, even enough to cover the mother’s rent, car payment and maybe her water bill. Sounds like the other should concede the exemption to dad, right?

Not so fast. Remember that dad, for whatever reason(s) hardly ever takes the child off mom’s hands. She feeds the kid (and shops for that food), shops for clothes for him, trundles him back and forth to friends, social events, the doctor, dentist and eyecare folk and maybe even school, tends to his illnesses, makes sure school work is done and maintained satisfactorily, goes to parent-teacher meetings and functions and… Well, the list goes on and on. Can she not argue the value of her services as a parent? The father’s support payments would fall quite a bit short if everything that the mother did was performed by a third party who charged a fair amount.

One can see that each parent could have a legitimate claim to that 51% figure. Most parents work this out amicably and perhaps alternate tax years for claiming the deduction or otherwise sharing a tax refund in some fair manner. However, this requires a decent relationship between two people who have grown apart… and maybe not in a mellow way. There’s also the possible adverse influence of the parties’ new significant others or the grandparents. It can get down and dirty.

If as part of the final divorce decree there was created a settlement agreement – which could be limited to just the sole issue of who gets the exemption and when – there would be little reason to argue at tax time. Without it and assuming your relationship with your ex is, well, less than cordial, you could find your find yourselves at a meeting with the IRS explaining why you each took that deduction in the same tax year. IRS penalties and interest can be very harsh.

Talk to your spouse about this issue well in advance and then get advice from an experienced Pennsylvania divorce lawyer.