Claiming Dependents When Parenting Time Isn’t Followed

Hi,

I need some advice regarding claiming dependents for taxes. My ex and I have three kids, and we have a custody order that outlines a schedule where we switch off years for who claims the kids. We’re not ordered to pay child support.

My oldest child has been living with me full-time for the past two months and spent over 50% of the year with me before that. This coming tax year, I’m supposed to claim only one of the younger kids. However, since my ex is no longer providing for our oldest, I believe I should be able to claim her as well, according to IRS rules.

My question is: If my ex takes this issue to court and files for contempt, would I just need to prove that our oldest lives with me full-time? Or would I still be considered in contempt without a modified custody order?

You need to follow the custody order exactly. If you think you should claim the child, you need to get a new court order.

The IRS doesn’t follow state court orders—they have their own rules. You could claim the child, and the IRS might accept it. However, if you do this against the court order, the judge could make you pay for any financial loss your ex suffers and might even find you in contempt.

It’s best not to claim the child against the order. Instead, get a new court order that gives you the right to do so.

I had full custody of my daughter, and we took turns claiming her on our taxes because he paid child support. I could always file as head of household since she lived with me, even in the years he claimed her as a deduction.

This was in our divorce agreement.

The IRS doesn’t follow the custody order, but he can file for contempt. You should consult a local lawyer to see how this might go, as judges can handle it differently and it might not be straightforward.

No, tax claims are separate from custody arrangements. Stick to the agreement and don’t change who you claim until you’ve gotten the court to update the order.

Hi, You must follow the court order. If you think you should claim the child, get a new order first. The IRS has its own rules, but the judge could penalize you or find you in contempt if you violate the order.