Who gets to claim the tax exemption for dependent children in Utah divorces?

Who gets to claim the tax exemption for dependent children in Utah divorces?  The answer is found in Utah Code § 78B-21-217 and IRS regulations.  Read on to learn of both.

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.

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Click here for the IRS’s website page that discusses how to determine whether you can claim a child tax exemption after your divorce.  Once you get the page, you’ll see a menu that looks like this as you scroll down the first third of it:

Publication 504 – Main Content

Table of Contents

•              Filing Status

o             Unmarried persons.

o             Married persons.

o             Exception.

o             Married Filing Jointly

o             Married Filing Separately

o             Head of Household

•              Exemptions  ← [this is where you want to click on the IRS website, when you get to the website, but don't click on it here in this blog page because the link doesn't work here]

o             Personal Exemptions

o             Exemptions for Dependents

When you get to the link entitled “Exemptions,” click on it, and it will take you to the section of IRS Publication 504 dealing with tax exemptions for divorced persons.

To learn how a noncustodial parent can avoid headaches for claiming children in years he/she is allowed, see this excerpt from the irs.gov website (http://www.irs.gov/formspubs/article/0,,id=207333,00.html)

Revocation of release of claim to an exemption. For tax years beginning after July 2, 2008 (the 2009 calendar year for most taxpayers), new rules apply to allow the custodial parent to revoke a release of claim to exemption that was previously released to the noncustodial parent on Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or similar statement. The revocation is effective no earlier than the tax year following the year in which the custodial parent provides, or makes reasonable efforts to provide, the noncustodial parent with written notice of the revocation. Therefore, if the custodial parent provides notice of revocation to the noncustodial parent in 2009, the earliest tax year the revocation can be effective is the tax year beginning in 2010. You can use Part III of Form 8332 for this purpose. You must attach a copy of the revocation to your return for each tax year you claim the child as a dependent as a result of the revocation.

Post-1984 and pre-2009 divorce decree or separation agreement.   If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.

1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
2. The custodial parent will not claim the child as a dependent for the year.
3. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.

• The cover page (write the other parent’s social security number on this page).
• The pages that include all of the information identified in items (1) through (3) above.
• The signature page with the other parent’s signature and the date of the agreement.

Post-2008 divorce decree or separation agreement. Beginning with 2009 tax returns, the noncustodial parent can no longer attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The noncustodial parent will have to attach Form 8332 or similar statement signed by the custodial parent and whose only purpose is to release a claim to exemption. The noncustodial parent must attach the required information even if it was filed with a return in an earlier year.

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