Can I claim my child on my taxes if I don’t have physical custody?

According to the federal tax code, the parent with primary physical custody is entitled to claim the child as a dependent on his/her taxes.  However, a state district court judge does have the legal ability to change this and award the tax exemption to the noncustodial parent under certain circumstances.  To do so, the judge must consider the relative resources of each parent and conclude it is in the child’s best interest to award the exemption to the non custodial parent.  The legal right of the judge to award the tax dependency to a non custodial parent despite the federal tax code provision is well established in Minnesota case law.

What do I need to do if the judge allows me to claim a child on my taxes?

If you do not have primary physical custody but the judge grants you the right to claim a child on your taxes, you must have the other parent complete and sign IRS Form 8332 each year, unless the other parent is willing to compete the section granting a waiver for multiple years.

If I don’t have the right to claim a child on my taxes now can I be awarded that right in the future?

Yes, even if you were not given the right to claim a child on your taxes in the original divorce decree, or custody order if you were never married, you can ask the judge for the right to claim a child during any future motion to modify child support.

Carol Mayer is an experienced family law attorney who can help make sure your rights are protected and you obtain the best possible result in the process.  Carol Mayer represents clients in all metropolitan counties and cities including but not limited to Sibley, Carver, Scott, Anoka, Hennepin, Stearns, Blue Earth, LeSueur, Brown, Nicollet, Arlington, Gaylord, McLeod, Chaska, Hutchinson, Mankato, Shakopee, Prior Lake, Belle Plaine, Jordan, and many more throughout Minnesota.

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