Who Can Claim the Kids for Tax Purposes if the Decree is Silent?

Posted by eric_k_johnson on January 17, 2012

Here is a question I get frequently. The correspondence below is taken from an actual e-mail thread, but I have changed the name and location of the e-mailer, as well as rendered it gender neutral to protect privacy.

—————

Dear Eric:

I have a question. My divorce was entered in Iowa and I can’t find in my divorce decree that there was a provision for who gets to claim the children for income tax purposes. So who gets to claim the kids in the absence of a provision in the decree?

Thanks,

Seeking Tax Relief in Iowa

—————

Dear Seeking:

That’s a question for your Iowa attorney, or if you didn’t have an attorney in Iowa when you divorced, you’ll need to ask an attorney licensed in Iowa what the policy of Iowa law is for claiming children as tax exemptions when the decree is silent on the subject.

I can show you what the IRS’s policy is, but that does not mean that the IRS controls if state law has spoken on the matter. Click here for the IRS policy: http://www.eitc.irs.gov/rptoolkit/faqs/divorced/

Here is the law for the state of Utah:

Utah Code § 78B-12-217. Award of tax exemption for dependent children.

(1) No presumption exists as to which parent should be awarded the right to claim a child or children as exemptions for federal and state income tax purposes. Unless the parties otherwise stipulate in writing, the court or administrative agency shall award in any final order the exemption on a case-by-case basis.

(2) In awarding the exemption, the court or administrative agency shall consider:

(a) as the primary factor, the relative contribution of each parent to the cost of raising the child; and

(b) among other factors, the relative tax benefit to each parent.

(3) Notwithstanding Subsection (2), the court or administrative agency may not award any exemption to the noncustodial parent if that parent is not current in his child support obligation, in which case the court or administrative agency may award an exemption to the custodial parent.

(4) An exemption may not be awarded to a parent unless the award will result in a tax benefit to that parent.

Eric K. Johnson

Utah Family Law, LC

Tel. No.: 801-450-0183

E-mail: eric@divorceutah.com