By: Christopher A. Pearsall, Rhode Island Divorce and Family Lawyer
How Can I Claim My Child If I Pay Child Support?
If you're looking for an easy answer that allows you to claim your child for State and Federal Tax purposes, you won't find it because it's usually not that easy if you are the payer of child support.
As a lawyer I focus my practice exclusively in Rhode Island Divorce and Family Law. Many people think they that if they pay child support that they are entitled to claim one or more children in whole, or in part, on their taxes.
Under Rhode Island Family law and probably in many other states the situation is just as John describes it. In the Rhode Island Family Court the spouses of a child can agree who will claim the child as a deduction on state and/or federal taxes. However, the agreement must be formal and must be approved by the family court in order to be proper and binding.
In the alternative, if there has not been an agreement approved by the family court between the parents about which parent will claim which child(ren) on their federal or state taxes as a dependent and/or claim the exemptions for the child(ren) , then one of then a parent may petition the court to award him or her one or more dependency and/or exemption claims for a child or children.
However, in Rhode Island if there is a divorce proceeding that has come before the court there is a presumption that the parent who has primary physical custody (also referred to as “placement parent”) of each minor child is the one who will receive the dependency and exemption deductions for the child or children in their placement. This is set forth in the Administrative Orders of the Rhode Island Family Court.
It should be noted that even if one parent agrees that the noncustodial parent may have the dependency and/or exemption allowances of one or more of the children living with the placement parent, OR if the state court orders that a noncustodial parent may have the dependency and/or exemption allowances for one or more of the children living with the placement parent, this is not all that is required.
Whether a parent may take a dependency deduction and/or the exemption allowances it is federal tax law that determines who may claim a dependency exemption for a child.
Even if a state court order allocates a dependency exemption for a child to a noncustodial parent, the noncustodial parent must comply with the Federal tax law standards and tests in order to qualify to claim an exemption for the child(ren).
To claim an exemption for a child(ren), the noncustodial parent must attach to the noncustodial parent’s return a copy of a release of claim to exemption by the custodial parent.
The release may be on a Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a document that conforms to the substance of that form. (See Internal Revenue Service Info Page)
In other words, while it may be nice to bargain with dependency allowances and exemption claims in a divorce or family law proceeding, it is not always as easy to bargain for the deductions for children in the proceeding.
Even if a custodial spouse agrees to give a noncustodial parent the dependency allowances and exemptions for a minor child as part of a settlement and agrees to sign IRS Form 8332, the agreement may be a waste.
Why? Essentially it is because if the noncustodial parent does not meet the Federal IRS Tax Regulations to take dependency allowances and exemptions on his or her taxes, then the deduction may well be lost to both parents or the noncustodial parent may raise a red flag for an audit for taking unallowable dependency deductions and exemptions.