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Claiming Children of Divorce on Income Tax

If you are divorced or separated, you need to follow the IRS rules for claiming children of divorce on income tax. When a divorce with children occurs, there is a custodial parent and a non custodial parent. The same tax rules apply for claiming children of separated parents on income tax return. In claiming children of divorce or separation on income tax, the children need to pass the IRS dependent exemption test as well as be either qualifying children or qualifying relatives. The same rules for claiming children of divorce on income tax apply for parents who are never married.

Definition of a custodial parent

A custodial parent is the parent having custody of the child for the greater part of the year. The other parent is considered a non custodial parent.

What if the divorce or separation happens during the year?

If you and your spouse get a divorce or a legal separation during the year and child lived with both parents before the separation or divorce, then the custodial parent is the one with whom the child lived for the greater part of the rest of the year. The other parent is the non custodial parent.

If I am not the custodial parent, can I still claim the child on my income tax?

If you are not the custodial parent (i.e. the child doesn't live with you for more than the time he or she lives with the custodial parent) then a child can only be treated as a qualifying child for you (the non custodial parent) if:

  • The parents are:
    • divorced or
    • legally separated
    • separate under a written separation agreement
    • lived apart for all times during the past 6 months to year end
  • One or both parents provide more than half the child 's total support for the year
  • One of both parents have custody of the child for more than half the year
  • A decree of divorce or separation provides that the non custodial parent can claim the child as a dependent and the custodial parent signs a written declaration (IRS form 8332) that he or she will not claim the exemption for the child that year. (For those divorced before 1985, the non custodial parent must provides at least $600 for the child's support)
Noncustodial parents' rights

If all the tests above are met, the non custodial parent can claim an exemption and the child tax credit for the child BUT cannot:

  • claim the child as a qualifying child for head of household filing status,
  • claim the credit for child and dependent care expenses, or
  • claim the earned income credit.
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