Who Claims the Child on Taxes After a Divorce in New York?

Can I Claim a Child on My Taxes? Who Can Claim Child As A Dependent?

Divorce attorneys are frequently asked “can I claim my child as a dependent on my taxes?” The right to claim the child tax credit is an important and overlooked aspect of a divorce. Determining who claims a child as a dependent on their taxes after a divorce is a significant issue that affects not only the financial situation of the parents but also the child’s welfare. This decision can impact eligibility for various tax benefits, including the Child Tax Credit, Earned Income Tax Credit, and deductions for child care expenses. The rules governing this matter are detailed in the Internal Revenue Code and have been elaborated upon through various IRS publications and guidelines.

Legal Framework for Determining Who Can Claim Children As Dependent on Taxes

The Internal Revenue Service (IRS) sets forth specific criteria to determine which parent is eligible to claim a child as a dependent after a divorce. According to the IRS, only one parent can claim a child as a dependent in a tax year, essentially preventing both parents from benefiting from the same tax advantages for the same child simultaneously.

Dependent Child on Taxes – Custodial vs. Non-Custodial Parent

The primary determinant is custody of the child. The child’s custodial parent – the parent with whom the child lived for the greater number of nights during the year, as set forth in the IRS’ article “Claiming a child as a dependent when parents are divorced, separated or live apart.”   The IRS typically grants the custodial parent the right to claim the child as a dependent, assuming all other qualifying conditions are met. This right is irrespective of the divorce decree or any financial contributions made by the non-custodial parent towards child support.

Special Rule for Divorced or Separated Parents Determining Right to Claim Child on Taxes

There is a special rule that allows the non-custodial parent to claim the child as a dependent if certain conditions are met. This is only possible if the custodial parent signs Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a substantially similar statement. This form or statement must be attached to the non-custodial parent’s tax return. The custodial parent can revoke this agreement for future tax years by providing written notice to the non-custodial parent. Parents are also encouraged to review IRS form 8332.

Multiple Support Agreement and Claiming a Child as a Dependent for Tax Purposes

In some cases, a child may not qualify as a dependent for any one parent under the usual rules, perhaps because the child did not live with one parent for more than half of the year. In such situations, a multiple support agreement may come into play. This agreement allows several taxpayers who together provide more than half of a person’s support to agree among themselves who will claim the person as a dependent. However, this is more commonly applied to dependents other than children of divorced parents.

Tiebreaker Rules for Determining Who Can Claim a Child as a Dependent for Tax Purposes

If there is any dispute or uncertainty about who has the right to claim the child, the IRS has established “tiebreaker rules.” These rules prioritize the custodial parent over the non-custodial parent. If the child spent an equal amount of time with both parents, then the parent with the higher adjusted gross income (AGI) is given the right to claim the child.

Who Claims a Child on Taxes With 50/50 Custody?

When parents have 50/50 custody, determining who claims the child on taxes can become complex because IRS rules are designed to assign the tax benefits to one parent. In cases of equal physical custody, several factors and IRS tiebreaker rules come into play to resolve which parent is eligible to claim the child as a dependent and other associated tax benefits.  According to SmartAsset, when parties share a 50 / 50 custody arrangement, the test is whether one party has the child or children for a greater number of day than the other party for that tax year.  In the event that the child spends exactly the same amount of time with each party, the party with the higher Adjusted Gross Income is entitled to claim the child as a dependent.

Impact of Recent Tax Law Changes on Claiming a Child as a Dependent

The Tax Cuts and Jobs Act (TCJA) of 2017 brought significant changes to tax exemptions and credits related to dependents. For tax years 2018 through 2025, the TCJA eliminated personal and dependency exemptions entirely while increasing the Child Tax Credit to $2,000 per qualifying child and introducing a new credit for other dependents.

Many of the TCJA’s individual tax provisions were set to expire at the end of 2025, but Congress acted to extend key provisions through legislation signed in 2025. The personal and dependency exemptions remain eliminated for 2026, meaning parents cannot claim a per-child exemption as they could before 2018. The Child Tax Credit continues, though parents should confirm the current credit amount and income phaseout thresholds with a tax professional, as these figures may have been modified.

For any divorce finalized or pending in 2026, the practical takeaway is this: the right to claim the child still carries real financial value through the Child Tax Credit and related benefits, even without the old personal exemption. That value should be factored into settlement negotiations. Because tax law in this area has shifted more than once in the last several years, parents are well served by working with both a divorce attorney and a tax professional before finalizing how the right to claim the child will be allocated in a separation agreement or divorce decree.

Best Practices For Filing Taxes and Claiming a Child as a Dependent

Given the complexities and potential conflicts surrounding this issue, best practices suggest that divorced or separated parents should:

• Clearly outline the terms of claiming dependents in the divorce decree or separation agreement, considering the tax implications.
• Consider alternating years for claiming the child as a dependent if it provides a financial benefit to both parties.
• Communicate openly and collaborate on tax-related decisions to ensure that both parents maximize their potential tax benefits without violating IRS rules.

Frequently Asked Questions About Claiming a Child on Taxes After Divorce

Which parent gets to claim the child as a dependent after a divorce in New York?

Under IRS rules, the custodial parent has the right to claim the child as a dependent. The IRS defines the custodial parent as the parent with whom the child lived for the greater number of nights during the tax year. This applies regardless of which parent pays more in child support. It is also worth noting that the IRS definition of “custodial parent” does not always match the legal custody designation in a New York divorce decree or Family Court order.

Can the non-custodial parent claim the child on their taxes?

Yes, but only if the custodial parent signs IRS Form 8332, which releases the right to claim the child for that tax year. The release can cover a single year or multiple future years. The custodial parent can revoke a multi-year release by providing written notice to the non-custodial parent. This is a common negotiation point in divorce and separation agreements on Long Island.

Who claims the child on taxes with 50/50 custody?

When parents share equal 50/50 custody, the IRS tiebreaker rules apply. The parent with whom the child spent even one more night during the year is treated as the custodial parent for tax purposes. If overnights are exactly equal, the parent with the higher adjusted gross income (AGI) gets the right to claim the child. Because of this rule, many Suffolk County divorce attorneys recommend that parents address this issue directly in their settlement agreement rather than leaving it to the IRS tiebreaker.

Can both parents claim the same child on their taxes?

No. Only one parent may claim a child as a dependent in any given tax year. If both parents file returns claiming the same child, the IRS will reject the second-filed return and may initiate an audit to determine which parent has priority. This can result in delays, penalties, and interest on any tax owed.

Should the right to claim the child be addressed in a divorce agreement?

Absolutely. Specifying which parent claims the child, or establishing an alternating-year arrangement, in the divorce decree or separation agreement prevents disputes at tax time and gives both parents clarity. In Suffolk County, courts often expect that this issue has been addressed during settlement negotiations, and a well-drafted agreement can avoid the need for post-judgment litigation over tax benefits.

Did the Tax Cuts and Jobs Act change who can claim a child after divorce?

The TCJA eliminated personal exemptions starting in 2018 and increased the Child Tax Credit to $2,000 per qualifying child. Congress extended many of these provisions through subsequent legislation, and the personal exemption remains eliminated for 2026. Because the Child Tax Credit amount and income phaseouts may have been modified, parents finalizing a divorce should confirm the current figures with a tax professional and structure their agreement based on up-to-date numbers.

Determining which parent has the right to claim a child as a dependent after a divorce involves a careful consideration of IRS rules and regulations, as well as the specific circumstances of the family. Custodial arrangements, the child’s residence, and agreements between parents play significant roles in this determination. Proper understanding and application of these rules can lead to optimal tax outcomes for both parents, ultimately benefiting the child. Given the potential for conflict and misunderstanding, it may be beneficial for parents to consult with a tax professional or attorney to navigate these issues effectively.