Divorce and Taxes – Claiming the Dependency Exemption

As Portland divorce lawyers, we get a lot of questions from clients about who gets to claim the dependency exemption after divorce.  Who gets to claim the dependency exemption post divorce hinges on who is the “custodial parent.”  The IRS applies a “time” test to determine who qualifies as the custodial parent,and does not rely on the divorce judgment. If the number of overnights is close to equal in the parenting plan, talk to your attorney about getting the other parent to pre-sign IRS form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents)), which pre-authorizes a parent to claim the exemptions.


About Sean Stephens

By Sean Stephens Google + Sean Stephens is divorce and family law lawyer, and a founding member of Stephens & Margolin LLP He was born in Eugene, Oregon and is a fourth generation Oregonian. Sean Stephens attended the University of Oregon, and graduated in with a Bachelor of Science in Psychology, with a minor in English Literature. His psychology studies emphasized early childhood development. You can find more about Sean Stephens at Stephens & Margolin LLP Follow him
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8 Responses to Divorce and Taxes – Claiming the Dependency Exemption

  1. Divorce is very painful, it is even more painful if you undergo this process and you are being treated unfairly. This is why learning more about it and seeking professional advice from those who are trustworthy can be very helpful as you go through this painful phase.

  2. I find your post very interesting. You have depicted very good facts that is very useful. Thanks for sharing.

  3. Stacy says:

    Here’s a brain teaser: If Mother has primary physical custody of her 2 children in 2009 and it’s noted in a decree that she receives the tax exemption for both children, and in 2011 a modification occurs in which child A is 50/50 and child B lives primarily with father, who gets to claim the tax exemption for the children?
    According the the IRS dad would get to claim Child B and since there are 365 days in a year, Mom and Dad would switch off the tax exemption for child A.
    In actual practice, if Dad claims both children Mother could hold him in contempt because the modification only changed physical custody, not who gets to claim the child for child tax credit.

  4. I have a real problem with the IRS using the ‘time’ test because in essence, they are playing the role of a district court judge and are re-litigating the custody arrangement. For the sake of simplicity, I wish the IRS would just follow the terms of the divorce decree – doing so would simplify the process by a lot and would ensure that only district court judges are issuing rulings that regard the issue of custody of the child(ren).

  5. Carlos Sanchez says:

    I am separated form my wife since last august (not legally separated).
    Did/do i have to pay child support?
    I did pay 600 months, but i have not paid for the last 3 paycheck, a total of 700.00 to date. Can she make me re-pay all of it since august? I have no proof such as receipts or check stubs. I paid cash. We are not yet divorced or legally separated. and who claims the children (3) as dependents?

    • Stephens Margolin says:


      The court expects spouses to support each other and their children, regardless of whether there is a court order or not. While the court could not hold you in contempt for not paying, it’s the right thing to do, and will likely help with the court if and when you do end up in front of a judge. Absent a divorce filing and a motion for temporary support, your wife cannot ask for retroactive support. Regarding claiming the kids as dependents, please read my previous post on this subject, located here.

  6. A lot of good information here – thanks for sharing.

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