depend exempThe question often arises after a divorce in Texas — which parent gets to claim the child as a dependent for tax purposes? Often this issue is settled by the obvious split of parenting time greatly in favor of one parent, but as we have seen a rise in equal time splits for parents and children we have also seen a rise in arguments over who should be entitled to the dependence exemption.

The IRS provides a special rule for children of divorced or separated parents in IRC 152(e). The custodial parent will have the right to claim the exemption provided that the parents lived apart for at least six months out of the year, the parents together provided for more than half the child’s support, and the child lived with one or both parents for more than half the year. The custodial parent is determined either by the face of the court documents or by physical custody. Physical custody is which parent has the child for the greater number of nights per year. If there is a literal tie, the winner is the parent with the higher adjusted gross income. The custodial parent may release the right to claim the dependency exemption to the noncustodial parent by completing Form 8332 “Release Revocation of Release of Claim to Exemption of Child by Custodial Parent”. This form must be attached to the noncustodial parent’s tax return to claim the dependency exemption.

It is not enough to have the assignment of the dependency exemption contained in the divorce decree. Likewise, the IRS will not accept a dependency release form if the court documents condition the exchange of the dependency exemption upon current payment of child support.

The general requirements for claiming a dependency exemption include

  • The taxpayer cannot be the dependent of another.
  • The dependent must be a US citizen or resident alien or resident of Canada or Mexico  for some part of the year.
  • The dependent cannot claim himself or herself on his or her own return.
  • The dependent must be a qualifying child or qualifying relative.

A qualifying child is one who:

  • is the taxpayer’s child, stepchild, foster child, sibling, or step sibling.
  • either under the age of 19 and younger than the taxpayer and spouse, or under age 24, a full-time student, and younger than the taxpayer and spouse.
  • must have lived with the taxpayer for more than half of the year.
  • must not have provided not more than half of his own support.
  • No joint return is being file during the year.
  • Only one person can claim the dependency exemption for the child.

For 2014, the dependency exemption is $3,950.

A child who is over the age of 18 (and not a full-time student) or has been emancipated cannot be claimed as a dependent.

Hat tip to the ABA Section of Family Law’s Fall 2014 edition of Family Advocate and the article “The Dependency Exemption” for the inspiration for this article.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
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.