Tag Archives: collaborative divorce

When Can the Non-Custodial Parent Claim the IRS Dependency Exemption?

Under current IRS regulations, the custodial parent, defined as the parent having the most overnights during the calendar year with the qualifying child, is entitled to claim the dependency exemption for a qualifying child. An exception to this general rule is recognized when the custodial parent releases his or her claim to the dependency exemption.

This release of claim by the custodial parent can only be accomplished by the custodial parent’s execution of IRS Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or by a separate document conforming to the language of Form 8332, executed only to release the dependency claim. This document must include an unconditional statement that the custodial parent will not claim the child for the specified tax year(s). A separation agreement or court order cannot be substituted for either Form 8332 or the separate written declaration.

The release may be effective for a single year or multiple years. The release should clearly identify which tax years are covered by the release. The noncustodial parent is required to attach a copy of the release to his or her tax return every year the release is effective.

A common misconception is that the divorce court can award dependency exemptions in the final divorce decree. Under Fla. Stat. 61.30(11)(a)(8) (2014), Florida divorce courts may calculate the impact of the amount of the dependency exemption(s) and may order the parent(s) to execute Form 8332 on a certain schedule, such as alternating tax years, but the divorce court cannot specifically award the dependency exemption(s) to either parent. Federal law, not state law, controls qualifying for the dependency exemption.

If you or someone you know needs help in a custody case, contact an experienced family law attorney.