Kevin Qualls Family Law
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How do tax exemptions for a dependent work in a divorce?

Even happily married Orange County couples know the importance and value of certain federal and state income tax breaks Californians get when they have minor children for whom they are providing. Basically, governments recognize that families with kids in the home have a lot of additional expenses, and they should get due credit on their taxes to account for this.

However, at least on the federal level, the rule is that parents get only one undivided tax break per child. This is so even if the parents live in separate households, such as in the case of a divorce or legal separation. This is also true with respect to couples who have children but who have never been married.

The Internal Revenue Service, or IRS, is going to expect only the custodial parent to claim the relevant exemptions and credits. Rather than look at the strict legalities, the IRS will assume that the custodial parent is the parent with whom the child resided most of the time in a given tax year.

However, the IRS will allow a parent who is not the custodial parent by the IRS's definition to claim an exemption if certain conditions are met. One of these conditions is that the custodial parent sign an official waiver of his or her right to claim the tax benefits associated with a particular child and give the same to the noncustodial parent.

Generally speaking, whether a parent needs to sign such a waiver is a matter for the local family law court to determine. As such, how tax exemptions get split is a matter for a family law court to decide, and parents going through a divorce or a paternity action will need to be aware of their rights in this respect.

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