April 15 is right around the corner and many of our clients are wondering: who gets to claim the child on their taxes? Parents may claim children under the age of 19, or under the age of 24 if the child is attending school full-time. See the information below to make sure that you are not missing out of your child-rearing credits. 

Is there a court order?

If you do not have a court order regarding time-sharing, then mom is most likely going to be entitled to make the claim. Why? Because if you were married and there is no order, then you are still married and you file jointly.  If you were never married, a child’s biological mother is generally undisputed whereas the paternity of a child may have to be established.  

The custodial parent typically gets to claim:

If you have a court order, the parent who has the child the most of the time generally gets to claim unless the order says otherwise.  However, the parent who does not have the child as much, may have a claim if that parent pays most of the child support. 

However, if you have a court order that allows the non-custodial parent to make the claim, this is the process: 

The custodial parent must sign a Form 8332 stating that they will not claim the child for the year.  The non-custodial parent attaches that Form to their own taxes. 

You can download that form here and send it to the other parent. We suggest sending a stamped return envelope so you get it back as soon as possible. Keep in mind that the custodial parent may revoke the Form at any time. If this is in contempt of a court order, call your attorney!  

If you are in the process of negotiating a court order for a parenting plan, and you have negotiated that you are going to get to make a claim as the non-custodial parent, make sure your attorney specifically states in the final order that the other parent must sign the Form 8332 and have it to you no later than January 31st of the year that you are filing your taxes with the child-rearing credit. 

What happens if both parents claim a child on their taxes?

The first person who makes the claim may get the credit, or the IRS may kick both tax returns back and review the claims through the audit process.  If they review it, they will consider, (1) who has majority time-sharing, (2) who makes the most money, and (3) whether both parents are required to file taxes.

Audits are serious and you can be penalized for underpayment if you make a claim when you are not supposed to. Make sure you’re within your rights before you make the claim.  

If you are the custodial parent and you are court-ordered to sign the Form 8332, but you refuse, you could be held in contempt of court.

The take-away:

If you are the non-custodial parent and there is no court order about time-sharing, you need to get one done before the end of 2016.  Otherwise that is 19-24 years of missed child-rearing credits. Call a Family Law attorney today to learn your rights.   

If you have more questions about Family Law, call Plata Schott Law today at 904-516-5560.