Custody and Taxes: Who Claims the Children?

Custody and Taxes: Who Claims the Children?

Each year, parents who are divorced or separated run into a common question: who gets to claim the children on their taxes?  Whether you have been separated for years or you are faced with this question for the very first time, the introduction of the 2017 Tax Act poses an opportunity for separated parents to acclimate (or re-acclimate) themselves with the law in this regard.

In situations where one parent has primary physical custody, that parent is entitled to claim a child tax credit.  The basis for this rationale is the IRS policy that the parent who has the majority of overnights in a given year is entitled to claim the children as dependents.  But who gets to claim the children where custody is shared equally?

Even still, the IRS policy remains: the parent who has the majority of overnights in a given year gets to claim the children on their taxes.  In cases of 50/50 custody this can (and often does) come down to one single overnight since most calendar years have an odd number of days.

“Well, what about leap years?” you’re asking yourself.  Great question!  In a leap year, that is, a year that has 366 days, parents who have 50/50 custody will likely have the exact same number of overnights.  In this case, the child tax credit is available to the parent who earns the higher income in that year.

Like with most things in family law, the best route for most families is to proceed by agreement where possible.  The IRS allows for parents to decide amongst themselves who will claim the children on their taxes in a given year.  Parents can alternate years, or, where there are multiple children, can agree on which parent will be allowed to claim which child/children.  In doing so, make sure that there are no miscommunications as to who will be claiming the children as taxpayers who claim the child tax credit incorrectly may not be eligible to claim the credit again for up to ten years.

If you have questions about how your custody schedule will impact your tax filings, give us a call at (610) 892 3877 to schedule a consultation with one of our attorneys.

About the author

About Christopher Casserly

Christopher Casserly graduated from Providence College in Providence, RI where he was a double major in English and French. After college Mr. Casserly went on to receive his Juris Doctorate from Villanova University School of Law in Villanova, PA. While in law school Mr. Casserly focused his studies on Family Law and participated in the Villanova Law Civil Justice Clinic where he advocated for indigent clients facing custody issues. Mr. Casserly is a member of the American Bar Association Family Law Section, the Pennsylvania Bar Association, the Delaware County Bar Association, and the Philadelphia Bar Association Young Lawyers Division.

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