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Who Gets to "Claim the Children" in Divorce Mediation?

In a recent article in the Journal of Accountancy author Valerie Chambers brought to light an important issue you need to consider during divorce mediation: who gets to claim the tax deduction for your children? It seems that regardless of what's written in the divorce decree or your Memorandum of Understanding drafted during mediation, the tax deduction will automatically go to the custodial parent for any tax years after July 1, 2008 unless a written waiver is filled out and filed along with your divorce or mediation papers. The form is known as Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents and a copy of the form can be found on our Helpful Links page under the heading Tax Issues & IRS Publications: Federal on our website.

When speaking of the Parenting Plans, during divorce mediation we determine the number of nights the child or children spend with each parent. Based on those numbers (known as the "counting nights rule") the custodial parent is deemed to be the parent with whom the child primarily resides with based on the number of overnights. Logically it would seem that the parent who has the child more of the time should get to claim the deduction. But what about parents with multiple children or parents who wish to share the deduction? Can the tax deductions be shared even if the children primarily reside with the one parent or is split evenly? The answer is yes.

This regulation is not only important for claiming the tax deduction but also for claiming the $1000 per year child tax credit for each qualifying child under the age of 17. As this is an issue you will want to learn more about, please consult with your accountant or financial professional if you should have further questions.

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