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  • Writer's pictureS.K. Burt Law, P.A.

Family Law and Taxes: Who is allowed to claim my child now that I am split from my spouse/partner?

Determining which parent is “allowed” to claim a minor child as a dependant on their taxes after a separation or paternity dispute can be difficult and tumultuous. There are many resources and conflicting opinions that cover the topic but all of the information can be confusing. However, once the court gets involved and an order has been entered, the fog begins to lift, and parents are given direction. On the other hand, parents are often able to work though the accumulation of parenting issues and come to an agreement; including which parent claims which children and in what years. These are the easy answers, but where do you stand before you have an agreement or direction from the court?

The quick answer is that the parent who spends more than 50% of the time with the minor child gets to claim the minor child as a dependent, so long as the child qualifies. However, some parents share time with the minor child equally, in this case we need to look to the tax code. (Disclaimer: we would always advise speaking to a tax attorney to secure individual advice prior to filing your taxes.)

Section 152 of the Internal Revenue Code is the section that defines a “dependent” and advises when more than one person qualifies to claim the minor child as a dependent. Therefore, Section 152(4)(B)(ii) is the section that advises when two parents both qualify to claim a minor child that resides with both parents for equal time and there is not an agreement or order in place directing the parents. In this case, the parent with the highest adjusted gross income claims the minor child. However, this section is trumped when the parents have entered into an agreement OR the court has entered an order or judgement directing the parents on this issue.

This is a very complex area of law, and the intersection of federal tax codes and Florida law can be difficult to maneuver on your own. If at any point in your separation or paternity dispute you have questions, it is best to consult not only a family law attorney, but a tax attorney as well. Here at S.K. Burt Law, P.A., you can be sure you will get advice from all angles on this issue. Please contact us today at or by phone at (407)308-2936 to set up a free consultation.

****This post was contributed by Allison J. Evans, Esq. Ms. Evans serves as "Of Counsel" at S.K. Burt Law, P.A. and works primarily with Family Law and Civil Litigation cases. Ms. Evans joined the S.K. Burt Law, P.A. team in October of 2019.****

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