The court awarded my ex custody of our kids, but they live with me. Can I legally claim them on my taxes?
Here’s the answer as it applies under Utah law:
(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.
If your decree of divorce does not make an award of child tax exemptions, you could and should go back to court and ask the court to do so under the provisions of Utah Code § 78B-12–217.
In the absence of a court order awarding one or both parents a/the child tax exemption(s), IRS regulations provide:
May divorced or legally separated parents split the dependency exemption for a child?
No, a dependency exemption for a child may not be split between two or more taxpayers. Generally, the child is the qualifying child of the custodial parent. Generally, the custodial parent is the parent with whom the child lived for the longer period of time during the year.
However, the child will be treated as the qualifying child of the noncustodial parent if the special rule for children of divorced or separated parents (or parents who live apart) applies. See Publication 504, Divorced or Separated Individuals, for more information. This rule requires in part, that both of the following conditions are met:
- The custodial parent signs a Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a substantially similar statement, and
- The noncustodial parent attaches the Form 8332 or a similar statement to his or her return.
If the custodial parent releases a claim to exemption for a child, the noncustodial parent may claim the child as a dependent and as a qualifying child for the child tax credit. However, generally, the noncustodial parent may not claim head of household filing status or the earned income credit, and the noncustodial parent may not claim the credit for child and dependent care expenses, the exclusion for dependent care benefits, or the health coverage tax credit.
Utah Family Law, LC | divorceutah.com | 801-466-9277