With tax season coming around, many parents call Atticus Legal Group with questions regarding who should claim the child as a dependent for federal and state income tax purposes.
If a Decree of Divorce or Related Order has been Entered.
If there is a court order declaring which parent should claim the child(ren) as a dependent for federal and state income taxes, the answer is simple: follow the court order.
If there is no Order or Ongoing Action.
If you are the custodial parent, and the noncustodial parent is entitled to claim the child(ren) as a dependent for federal and state income tax purposes under the Decree of Divorce or related order, you will need to sign a Form
8332 to allow the noncustodial parent claim the minor child.
If you do not have a court order, then the parent who had the child(ren) for a greater number of overnights the year before is entitled to claim the minor child(ren). If both parents shared parent-time with the children equally, then the parent with the higher gross monthly income is entitled to claim the minor children for federal and state income tax purposes.
If there is an Ongoing Divorce or Paternity Action
If you are undergoing a divorce or paternity action, and trying to reach an agreement regarding which parent should be entitled to claim the minor children, you have a wide range of options.
First, when parents reach an agreement concerning tax exemptions, the most common solution is to alternate years in which a parent can claim the children for federal and state income tax purposes. Because the "non-custodial" parent is paying child support and supporting the children, that parent generally requests that he/she be entitled to an exemption as well.
In many of these agreements, the parties will include a "buy-out" provision, providing that if a parent is not entitled to claim the children, but would receive a greater benefit if he/she did claim the minor children, the parent with the greater benefit could "purchase" the exemption by paying the other parent the sum he/she would have received had he/she claimed the children.
If the parties do not reach an agreement, and the case goes to trial, there is substantial case law that provides that the custodial parent should be entitled to claim the exemption for the minor children unless allowing the non-custodial parent to claim the exemption would be in the minor child's best interests. In such cases, the non-custodial parent has the higher income and provides the majority of support for the child or children whose exemption is claimed. These decisions are not altogether uncommon (particularly if child support and/or alimony is being paid), so it is not a result that should be dismissed.
Because dividing tax exemptions for minor children can be complicated, please feel free to give Atticus Legal Group a phone call at 801-784-0529.
 See Allred v. Allred, 835 P.2d 974 (Utah App. 1992)