A common question at the time of divorce in Texas is “which parent gets to claim the tax exemption for the child.” The answer is governed by Federal law. This means that a Texas court cannot make any rulings or determinations as to which parent receives the tax exemption for the child.

Federal law states that the parent that receives child support is the parent that is entitled to receive the child tax credit. The only way to deviate from this Federal law is by a written agreement between parents contained in the divorce decree.

When parents are operating under a 50/50 possession schedule, the parents will generally have off-setting child support. Off-setting child support occurs when each parent has the child one-half of the time. Having possession of the child one-half of the time theoretically entitles each parent to child support. Off-setting child support calculates each parent’s child support obligation and the parent with the higher child support obligation pays the other parent the difference. For example: If the parents are operating under a 50/50 possession schedule; one parent’s child support obligation would be $1,200.00 and the other parent’s child support obligation would be $900.00, the parent with the $1,200.00 child support obligation would pay the other parent the difference in the two child support obligations, which is $300.00.

It is important when parents are performing a 50/50 possession schedule that there are agreements contained in the divorce decree dealing with which parent is entitled to receive the tax exemption for the child. Many parents alternate tax years that each parent is entitled to claim the child as a tax exemption.

If you do not contain a specific agreement in your divorce decree regarding which parent will receive the child tax exemption, the parent receiving child support, regardless of the possession schedules of the parents, will receive the child tax exemption.
 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.