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Which Parent Can Claim the Dependency Exemption?

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The Gainesville Family Law Attorneys of the Law Office of Alba & Yochim P.A. understand the difficulties that parents can have in evaluating entitlement to the dependency exemption when parents do not live together. The dependency exemption is a deduction on taxable income that can only be claimed by one parent for each qualifying child. Further, the parent able to claim this exemption will generally have the right to claim the child tax credit as well. Qualifying for the dependency exemption depends, in part, on which parent the child resided with for more than half of the year. Given the increasing trend towards equal time-sharing in Florida, determining which parent is entitled to this exemption can be challenging for parents, particularly for those that have not previously agreed upon who will claim the exemption as part of their parenting plan or has it ordered in a final judgment of dissolution of marriage or paternity.

For tax purposes, parents are categorized as either custodial or non-custodial. Generally, the parent with whom the child resided with the greater number of nights during the year is considered to be the custodial parent. A child is counted as spending a night with a parent, where the child sleeps in that parent’s home, regardless of whether that parent was present; where the child and that parent spend the night together, but are away from home; or where the child was with neither parent for a night, but normally would have been with that parent.

In some cases, such as where a parent works at night, days can count as well for purposes of the dependency exemption, if the child was with a particular parent for a greater number of days, even if the other parent had the child for more nights. However, in calculating what constitutes a day spent with a parent, there is an exception for days in which the child is in school. Here, the primary residence registered with the child’s school is used to determine which parent can count that day towards their portion of the year.

Where the parents divorced, separated, or discontinued residing together part way through a year, but the child previously resided with both parents, the days that the parents actually resided with one another do not count towards either parent’s calculation of days for purposes of the exemption. Rather, it is the parent that had the child the greater portion of the remainder of the year following the separation.

Calculating which parent had the child for the greater portion of the year can be particularly challenging for parents who have shared parental responsibility with 50/50 timesharing, because often time, the parents did not keep a full record of where the child was each and every day of the year. Without properly documenting this throughout the year, disputes can arise in close-call and nearly-equal scenarios, especially where the parents deviated from their agreed on or ordered time-sharing schedule as is common.

Although highly uncommon, there are some cases in which the child resides with both parents for an equal number of nights. Here, the parent with the higher income can generally claim the exemption, unless that parent agrees to allow the other parent to take the exemption (i.e. marital settlement agreement and/or release of claim to exemption). If you have already executed a release of exemption, you may be able to revoke the release. However, keep in mind that revocation does not become effective until the next tax year, and you may need the other-parent’s consent, depending on the extent of the release (i.e. all future years will generally require consent).

If you are in the process of going through a divorce, are legally separated, or were never married, it is important to know your legal rights regarding entitlement to the dependency exemption. For those that are already divorced, the date of your divorce decree or separation agreement can play a critical role in determining how to appropriately handle exemption matters when filing your tax return. In fact, there are special rules that apply to the dependency exemption for qualifying children of divorced or separated taxpayers.

An experienced Family Law attorney can explain the impact of prior agreements, the effect of signing a release of claim to exemption, your rights regarding revocation of a release, as well as advise you on the proper means of calculating which parent the child resided with for the greater portion of the year. The client focused results driven Gainesville Attorneys of the Law Office of Alba & Yochim P.A. encourage all parents to know their rights, and take measures to protect them.

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