The IRS uses specific guidelines based on custody arrangements to determine who can claim a child as a dependent for tax purposes. One key factor that often arises in disputes is where the child spent the majority of nights during the tax year. Understanding these rules is essential for family law attorneys advising clients in divorce and custody cases.
The Majority-of-Nights Rule
The IRS considers the custodial parent as the one who can claim the child as a dependent. The custodial parent is the parent with whom the child spent more than half the nights (183 nights or more) during the calendar year. This rule applies regardless of what a divorce decree or custody agreement may specify.
Here are the basics of how the IRS calculates this:
- Counting Nights: A night is one in which the child sleeps at a parent’s residence, even if the child is temporarily absent due to special circumstances, like illness, school trips, or summer camp.
- Shared Time: If the child spends an equal number of nights with both parents, the IRS will turn to tie-breaker rules, prioritizing the parent with the higher adjusted gross income (AGI).
Exceptions to the Rule
Sometimes, the noncustodial parent may claim the child as a dependent. For this to happen, the following conditions must be met:
- Custodial Parent Releases Claim: The custodial parent must sign IRS Form 8332, releasing their claim to the dependent.
- Form Submission: The noncustodial parent must attach Form 8332 to their tax return to claim the child.
Without this signed form, the IRS will default to the custodial parent’s claim, even if the divorce decree assigns dependency to the noncustodial parent.
Common Issues
- Mistakes in Counting Nights: Parents may miscount the number of nights a child spent with them, leading to duplicate claims. This often triggers an IRS audit or denial of both parents’ claims.
- Confusion with Decrees: Many parents assume that the terms of a divorce decree are binding on the IRS. However, the IRS follows its own rules, which can override the decree unless Form 8332 is properly executed.
Tips for Family Law Attorneys
- Keep Accurate Records: Encourage clients to maintain a calendar or log of where the child spent each night. This is especially important for parents with shared custody arrangements.
- Address IRS Forms in Agreements: Include provisions in divorce decrees about who will claim the child and ensure the custodial parent agrees to sign Form 8332 if the noncustodial parent is to claim the dependent.
- Explain Tie-Breaker Rules: Educate clients about how the IRS resolves disputes if custody is evenly split.
Family law attorneys can help clients avoid confusion, missed tax benefits, and potential IRS audits by emphasizing the importance of the majority-of-nights rule. Proper planning and record-keeping are key to navigating these rules successfully.