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Dependents, Divorce, and Taxes

When a couple is filing for divorce, but the divorce decree has not been finalized yet, they can still file a joint tax return. Once the divorce goes through, an ex-spouse can file the return as a head of household, if he or she has paid for over half the maintenance of the house and has a dependent living at their home for over half the year.

When two parents are divorced, only one of them can claim the $3300 dependency exemption for each child on their tax returns for 2006. The parent claiming the dependency exemption is also allowed a $1,000-per-child tax credit for children younger than 17 as long as their income is not above a certain figure.

Usually, it is the person named as the custodial parent in the child custody portion of the divorce decree that is allowed to claim the child as a dependent. If the divorce decree does not name a custodial parent, then the parent with whom the child has lived with the longest throughout the year is the custodial parent.

A non-custodial parent, however, can claim the exemption as long as the custodial parent signs a waiver promising not to claim the exemption.

If a non-custodial parent claims the exemption first and without the custodial parent’s permission, he or she could be given the exemption temporarily. However, once the custodial parent files the exemption and the IRS notices that a child’s social security number has been entered by two different taxpayers, then the tie-breaker rule would apply. This rule says that if two parents claim that a child is their dependent, the parent that the child lived with the longest during the year would get to claim the exemption. If the child had spent the same amount of time with both parents, then the parent that had the higher adjusted gross income would get the exemption. The parent who “wrongly” claimed the exemption would have to repay the tax, plus penalties and interest.

Regardless of who the custodial parent is, if the non-custodial parent pays for any of the child’s medical bills, these costs can be a deduction. Child-care credit for work-related expenses can be claimed for children younger than 13.

The spouse who pays alimony/spousal support can also receive a tax deduction for these payments, even if they aren’t itemized-along as the payment amounts are stated in the divorce agreement and made in cash. The spouse who receives the alimony must pay taxes on them. For child support, however, there is no deduction for paying them and no taxes paid by the recipient parent.

Assets transferred from one spouse to another during a divorce are not taxed. However, there will be a capital gains tax before the transfer and afterwards.

At Sagaria Law, P.C., we can help you file for divorce and work out child custody, child visitation, and spousal support terms. We can also help you with other family law related matters. We represent clients in Carmel, Campbell, Los Gatos, Oakland, Fremont, and San Jose, as well as clients from other cities in Monterey County, Alameda County, and Santa Clara County. Contact Sagaria Law, P.C. today for your free consultation.

Divorce and Dependents: Who Claims the Kids?, Kiplinger.com, March 5, 2007
Getting Divorced, Kiplinger.com, January 2007