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Who can claim the child dependency exemption?

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Under prior IRS tax laws, the custodial parent was allowed to claim a dependent child for tax purposes. The law allowed the custodial parent to waive or allocate the dependency exemption to the other parent, and also gave authority to family courts to order the custodial parent to waive the exemption and/or allocate to the job-custodial parent.

The issue got even more murky in cases of shared or equal placement because in those situations, really both parents are the custodian of the child or children and qualify for claiming the tax dependency exemption.

In addition to which parent can claim the child, the IRS also requires that the custodial parent sign an IRS waiver form 8332, in each tax year, where the non-custodial parent was to have claimed the exemption. Without that IRS waiver form attached to the tax return, the IRS very well may disallow the deduction, regardless of whatever your court papers may say on which parent may claim.

Under the Tax Cuts & Jobs Act of 2017, there are new tax laws in effect that disallow ANY personal exemptions from 2018-2025. The child dependency exemption has zero value during these tax years. Instead, the child tax care credit has been increased to $2,000, and can be allocated between the parties either by agreement or by court order. The same IRS waiver form 8332 should be attached to the tax return of the person claiming the credit, if they are the non-custodial parent.

If you have questions on the child tax dependency exemption when going through a divorce, contact the experienced family lawyers at Karp & Iancu, S.C., for a free consultation.

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