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Who can claim the child as a dependent after a divorce?

Only one parent. If both former spouses try to claim the same child as a dependent, things can get messy.

In many cases, the divorce decree names the custodial parent. This custodial parent is the one who can name the kid as a dependent and receive the $3,300 (for the 2006 tax year) dependency tax exemption.

If your divorce decree does not declare one of the parents the custodial parent, then the parent with which the child spent the most time during the year can legally claim the child as a dependent.

If a non-custodial parent would like to claim the tax exemption, he or she can ask the custodial parent to sign a waiver saying he or she will not claim the same child. This waiver should be attached to the non-custodial parent’s tax return.

What happens if both divorced parents claim the child as a dependent?

If your ex-spouse files for the deduction before you do, he or she may get it even if you are entitled to it legally, though he or she may have to give it back eventually.

Once you file your return and the IRS detects that both you and your ex-spouse have claimed the same child, they will take a closer look.

“The IRS would look at both returns, and if the parents can’t agree on who claims the exemption, then the IRS would apply the tie-breaker rule,” said IRS Spokesman John Lipold.

The Tie-Breaker Rule?

This rule states that the IRS will decide in favor of the parent who the child lived with the most during the tax year.

If the child spent equal amounts of time living with each parent, the IRS will grant the exemption to the parent with the higher adjusted gross income.

If a parent wrongly claimed the exemption, he or she will be forced to pay it back plus penalties and interest.

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