Tax Insights

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Dependents – Who Gets to Claim the Kids after a Divorce?

Are you divorced? Does your divorce decree state that you may claim your children as dependents in the odd years while your ex-spouse gets to claim them in the even years? Then why were you unable to claim the children as dependents last year? The answer could be that perhaps you did not or could not obtain the proper documentation to claim the children.

To claim a dependency exemption for a child, a divorced parent must meet the following requirements: 1) You must be divorced, legally separated or lived apart at all time during the last six months of the calendar year. 2) You must have provided more than 50% of the child’s support for the year. For divorced parents, the IRS assumes that each parent provides more than 50% of the child’s support during the year. 3) You must be the custodial parent. In other words, you would have custody of the child for the greater portion of the year determined by the greater number of nights where the child resides. and 4) If you are not the custodial parent, the custodial parent must release their right to claim the child as a dependent. This last requirement seems to cause the most problems.

As the noncustodial parent, what do you have to do to claim the kids? For year beginning after 2008, all noncustodial parents wishing to claim their children as dependents should complete Form 8332 and have the custodial parent execute this Form. Form 8332 is then attached to your individual tax return. The IRS can deny the dependency exemptions to the noncustodial parent when substitute documentation does not meet all the requirements of Form 8332.   

Therefore, if you are the noncustodial parent and you want to claim the kids as dependents, you need to be on good terms with the custodial parent so he/she will sign Form 8332 and release the exemption to you. Good luck!

George D. Woodard, CPA


  1. SAM says:

    My custody order specifically says that my ex is to claim one child as dependent and i am to claim the other child as dependent. But ex goes ahead and claims both the kids. How can IRS help me address and fix this issye?

    • admin says:

      Hi Sam –

      You can contact the IRS regarding your issue by visiting or by calling toll free 1-800-829-1040.