Legal Question in Tax Law in Florida

Re: Who can claim dependent on tax return?

In your question you ask about �claiming� your son on your tax return. I presume you are talking about claiming a personal exemption for the child. You are generally entitled to a personal exemption of any of your children for whom you provide more than 50% of the support during the tax year. But for parents who are divorced or separated, different rules apply. In general, if a child's parents are divorced or separated, and the parents together provide more than 50% of the child's support, then the parent who had custody of the child for the greater part of the year is entitled to the child's personal exemption. This is true even if the noncustodial parent provided the greater part of the support. This rule applies where at year end the parents are either divorced, legally separated, separated under a written separation agreement, or have been living apart at all times during the last six months of the year.

There are several ways in which you can avoid this general rule if you are the noncustodial parent, but each requires the cooperation of the custodial parent. First, the custodial parent may waive his or her right to the exemption by attaching a required form to his or her tax return each year. In that case, the noncustodial parent may claim the exemption. Second, you may enter into a multiple support agreement with the custodial parent, which can assign the exemption to the noncustodial parent. In such cases, the noncustodial parent must still provide at least 10% of the child's support. Such agreements are useful where the parents have joint custody of the child and it is unclear who is entitled to the deduction under the regular rules.

You should also know that a child of divorced parents is considered to be the dependent of both parents. (IRC section 213(d)(5)) That is, if either parent can claim a child as a dependent under the rules for divorced or separated parents, each parent can include the medical expenses he or she pays for the child in his or her itemized deductions -- even if the personal exemption for the child is claimed by the other parent.