Claiming Your Child as a Dependent after Divorce

Posted on Feb 16, 2022 by Katie Carter


There are a lot of challenges that coparents face after a separation, divorce, or breakup. Whether the parents are on relatively good terms and are able to set up a custody and visitation schedule by agreement, or whether they’re more like parallel parents who aren’t really able to negotiate much of anything between them, ultimately custody and visitation has to be resolved. Along with custody and visitation is a whole host of other issues, including – but, of course, not limited to, the ability to claim a child as a dependent on your taxes.

I get it. We all want to pay a little less in taxes. And divorce and custody litigation is expensive. Kids are pretty expensive, too, come to think of it, especially when they’re young enough that you have to pay for daycare, nannies, au pairs, or other childcare solutions. We’re ultimately all looking to have access to any and all benefits we can legally claim. It’s fair. I understand.

In most cases, claiming the child (or children) as dependents on the tax return isn’t a particularly complicated legal issue. The parents make an agreement and, for the most part, it works out. That’s not always the case, though. In some cases, it really does all come down to this one issue, and one parent or the other is not willing to budge.

What happens when the parents can’t agree about who will claim the child as a dependent on their taxes?

Well, in the law, there are really only two options: either the parties discuss together and reach an agreement on a particular issue or, alternatively, the case goes to court and the judge will decide. This works the same way.

Technically, according to the IRS rules, the custodial parent is supposed to be able to claim the children – but, in many cases, the states have the final ruling on this particular point. In Virginia, as in most other places, the judge could – theoretically at least – order that one party or the other gets to claim the child(ren) on their taxes.

My experience, though, is that judges are not likely to give the benefit entirely to one parent over the other parent. When these issues are litigated in court, I see it happen most often that the parents either alternate every other year, or divide the children evenly between them. To the extent that there could be an odd number of children (or an even number, but one ages out before the other), these could be alternated on an odd/even year basis.

Probably not surprisingly, that’s usually what happens when this issue is decided by agreement between the parties, too.

Like any other tax issue, though, it’s a good idea to talk to either a tax attorney or a CPA directly about your specific case. Family law attorneys are not tax advisors and really aren’t in a position to help you weigh the advantages and disadvantages of a particular course of action – except to say that it’s probably a good idea to make sure the juice is going to be worth the squeeze before you undertake expensive, annoying, time consuming litigation on a particular point.
It may be that the child dependency exemption isn’t worth as much as you think it is. The actual value of these things changes over time – and has changed in recent years. It may also be that one or the other of you wouldn’t benefit from claiming it at all. These are all relevant points, and are definitely points you’d want to address at any hearing on the issue. (If, for example, you wanted to argue that you should be able to claim the children every single year because your child’s father’s income is such that it would provide no financial benefit to him, you’d need a CPA designated as an expert witness to testify to that effect.)

That’s probably what’ll be most persuasive to a judge anyway, because it would be hard for a judge to decide between one parent or the other where there’s a financial incentive involved.

Every case is different, and different people choose different hills to die on. Maybe this is yours – or your child’s father’s. You wouldn’t be the first!
For more information, or to schedule a consultation with a licensed and experienced Virginia divorce and custody attorney, give our office a call at 757-425-5200.