March 15, 2024
Claiming Children on Taxes When There is No Court Order
Although the Delaware Family Court can (and frequently does) make decisions about who can claim the children for tax purposes, unless you have a precisely equal number of overnights during a tax year, the IRS views one parent as the custodial parent and the other as the non-custodial parent. If the Court issued an order regarding who can claim the children, even if you have shared residential placement and especially if you have fewer overnights, the best practice would be to fill out a Form 8332 which documents the custodial parent’s waiver as to dependent children. With the Form 8332, even if you have slightly fewer overnights, you can claim the children for tax purposes. Form 8332 applies to any dependency claim (which, under the Tax Cut and Jobs Act has sunset until 2025) and the child tax credit.
If your ex is technically the custodial parent (per the IRS rules, not by Delaware Family Court standards) and refuses to sign the Form 8332 to allow you to claim the children for tax purposes, you will need to file a petition in Family Court to either gather the signature or be awarded damages for any loss. You should not file your tax return and claim the children anyway. You will need to enforce the Delaware Family Court Order in Delaware Family Court- not in the U.S. Tax Court.
If you are the custodial parent and it is your right to claim the children for tax purposes, but your ex claims the children anyway and they were the first one to file, you will not be able to electronically file your taxes. Your filing will be rejected. You will need to claim the children as your dependents, attach a statement, and paper file your return.
Beware: even if your custody order or the order resolving your property division says who can claim the children for tax purposes, only the custodial parent (as defined by the IRS as the parent with more overnights) can use the children to claim “head of household” filing status and can claim all other tax benefits related to having a dependent child such as daycare expenses and earned income credits. Form 8332 (which can be signed years in advance) can give you confidence when filing. If you’re in a sticky tax situation, it is best to contact your tax professional for advice and your family law attorney for help.
If your ex is technically the custodial parent (per the IRS rules, not by Delaware Family Court standards) and refuses to sign the Form 8332 to allow you to claim the children for tax purposes, you will need to file a petition in Family Court to either gather the signature or be awarded damages for any loss. You should not file your tax return and claim the children anyway. You will need to enforce the Delaware Family Court Order in Delaware Family Court- not in the U.S. Tax Court.
If you are the custodial parent and it is your right to claim the children for tax purposes, but your ex claims the children anyway and they were the first one to file, you will not be able to electronically file your taxes. Your filing will be rejected. You will need to claim the children as your dependents, attach a statement, and paper file your return.
Beware: even if your custody order or the order resolving your property division says who can claim the children for tax purposes, only the custodial parent (as defined by the IRS as the parent with more overnights) can use the children to claim “head of household” filing status and can claim all other tax benefits related to having a dependent child such as daycare expenses and earned income credits. Form 8332 (which can be signed years in advance) can give you confidence when filing. If you’re in a sticky tax situation, it is best to contact your tax professional for advice and your family law attorney for help.