One question that arises regularly in family law cases is which parent can claim their child’s child tax credit on their tax returns. This situation arises most often when one parent is paying child support and the other is taking care of the child primarily. Typically in this situation, both parents seem to think that they should be able to claim their child on their own taxes. The question is, “who is right?”
The answer to this question is not as straight forward as you may think. In general, the IRS states that a divorced or separated parent may claim their child as a dependent if they have custody of the child for more than six months of the year. The problem that arises is that there is no enforcement mechanism if both parents claim the same credit on their individual return. In this situation, the IRS simply notifies both parties that one of them must change their return. There is no procedure to determine which parent gets to claim the credit.
The answer to this complicated situation is found in Virginia Code § 20-108.1 (E). This section states: “on the issue of determining child support, the court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.” Of course, the court must be asked to make this determination by one of the parties.
To assure that you can claim your child on your federal and state tax returns you must ask the court to include this provision on your child support order. The difference between paying thousands of dollars in additional taxes each year comes down to the skill and knowledge of the family law attorney that you hire. The family law attorneys at Bush & Taylor know the law, and they can apply the law to your advantage. Don’t settle for anything less.
See for yourself what the Virginia Code and IRS say about child tax credits: