Often I am asked about which parent is entitled to claim the income tax dependency exemption for minor children after divorce. The answer is “it depends.”
In Minnesota, the divorce court may award the right to claim the income tax dependency exemption to either parent. Courts frequently allocate the exemptions equally, provide that both parents remain current in their respective support obligations. If there is only one child, the court will often award the exemption to one parent in even-numbered years, and to the other parent in odd-numbered years. This language will be included in the divorce decree. Though the court has the right to do this, it probably will not do it unless one party requests it. In other words, if you forget to ask for it, the court will typically not do anything on its own to include this language.
If the divorce decree is silent about which parent gets to claim the income tax dependency exemption, then the Internal Revenue Code governs. Essentially, the IRS rules provide that after divorce, the parent who has the child in his or her care more than fifty percent of the time is entitled to claim the exemption. So, the parent who has the children in his or her care for at least six months and one day is entitled to claim the exemption.
So, what do you do if you have the kids most of the time but your ex-spouse claims the dependency exemptions anyway? File your tax return, claim the exemptions, and include a certified copy of your divorce decree and a letter explaining why you are entitled to claim the exemption.