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The Law Offices of Paul H. Nathan

Q:
I only work part time, so most of our daughter’s expenses are covered by my ex’s California child support payments. She lives with me, but because he pays more, he says that means he can deduct her on his taxes. Who gets the tax deduction?

A:

When parents are divorced, the IRS usually rules that the parent with physical custody gets the tax exemption for the child.  The only exception is when the custodial parent relinquishes the right to an exemption through IRS Form 8332. 

If your California divorce agreement contains a provision allowing the non-custodial parent to take the exemption, you must fill out IRS Form 8332 allowing your ex to take the exemption and the child tax credit. This form must be attached to the non-custodial parent’s tax forms.

If there is no such provision in your divorce agreement, you get the exemption. You may give it to your ex using Form 8332, but that is considered your choice to make.

Rules for joint custody

If parents share physical custody, the parent with whom the child spent the most nights gets the exemption. If the child spent six months with each parent, the exemption is given to the parent with the higher adjusted gross income.

Why does your ex want the exemption?

Although your ex-spouse currently pays more than half of the support for your child, he may not deduct your daughter on his taxes unless you provide permission through IRS Form 8332.  Claiming the child exemption also allows you to claim:

Head of household filing status

  • The child tax credit
  • Credit for child and dependent care expenses
  • The exclusion from your income of any dependent care benefits
  • Earned income tax credit (if you meet the criteria)

If you are owed child support

What if your ex hasn’t paid the child support you are owed? If your ex-spouse owes you child support payments, the U.S. Treasury Department will confiscate his federal tax refunds and use them to pay past-due child support. 

Taxes are only one of the factors that must be considered when reaching a child support agreement in California. Make sure your family’s interests are protected. Contact the San Francisco child support lawyers at The Law Offices of Paul H. Nathan. Call 415-341-1144 to schedule an initial consultation.