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Filing for Taxes after Divorce or Separation (FAQs)

Authored By: Montana Legal Services Association (MLSA) LSC Funded
Contents

 

In this article, we’ll talk about:

  • Your filing status after a divorce or separation
  • Claiming your child on your taxes
  • Child Tax Credit (CTC) 
  • Earned Income Tax Credit (EITC) 
  • Innocent Spouse Relief 
     

I just got a divorce. What is my status for filing taxes?

The IRS determines your tax filing status based on your marriage status on the last day of the year. If you are married on December 31st, you must file as married for that year. If you are divorced as of December 31st, you must file as single or head of household for that year.

 

I’m divorced or separated. Can I claim my child on my taxes?

In general, the parent who lives with the child for most of the year gets to claim that child on their taxes. The IRS refers to the person whom the child lives with for most of the year as the Custodial Parent. Even if the custodial parent pays less child support, the custodial parent may still claim the child.

If the child spends exactly half of their time with each parent, the IRS will consider the child to be the qualifying child of the parent with the higher Adjusted Gross Income (AGI) in the tax year. 

A custodial parent may give a non-custodial parent the right to claim a child for the dependent exemption and the Child Tax Credit by signing IRS Form 8332

 

What do I get for claiming my child on my taxes?

If you claim a Qualifying Child on your taxes, you may claim the child for a dependent exemption. Each dependent exemption decreases the income you pay taxes on. A qualifying child can be a child, stepchild, foster child, or grandchild who meets the IRS rules for a qualifying child. And, you may be eligible for tax credits like the Child Tax Credit (CTC) and the Earned Income Tax Credit (EITC).

 

What is the exemption for dependents?

The exemption for dependents is a tax deduction on your tax return. A dependent is a person that is not you or your spouse that you support, like your child. A tax deduction helps you pay less income tax. A tax deduction might increase your tax refund.

 

Can I get the Child Tax Credit (CTC) if I do not claim an exemption for my child?

No. You must claim an exemption for an eligible dependent to get the Child Tax Credit.

 

Can you give the dependent exemption and Child Tax Credit to the other parent?

Yes, a custodial parent can give a non-custodial parent the right to claim a child for the dependent exemption and the Child Tax Credit by signing IRS Form 8332. The non-custodial parent must attach the signed Form 8332 to their tax return. The form to give the non-custodial parent the exemption can be permanent or cover one or more years.

 

Can you give the Earned Income Tax Credit (EITC) to the other parent?

No. The EITC can only be claimed by the parent who the child lived with for most of the year. Only one person can claim the EITC for a child. 

 

Can one parent claim the EITC and the other parent claim the Child Tax Credit based on the same qualifying child?

No. Tax benefits for a single qualifying child cannot be split or allocated among parents for the same tax year. 

 

Can you claim EITC without claiming a dependent exemption or Child Tax Credit? 

Yes, if you qualify. The dependent exemption, Child Tax Credit, and the EITC have different rules. In general, if a child lived with you for more than half the year, you can claim the EITC for that child. You can find more information on who can claim the ETIC at IRS tax publication number 596.  

 

What happens if my ex claimed my child but I should get to claim the child?

The IRS uses “tiebreaker rules” to decide who gets to claim a child when more than one person claims the same child. The IRS will examine the tax returns of everyone who tries to claim the same child. The IRS may require you to submit evidence to prove you can claim the child. That may be:

  • Proof of how you are related to the child, 
  • Proof that you support the child, and 
  • Proof of where the child lives.

In general, the parent who lives with the child most of the time during the tax year will get tax benefits for the child. But, if the child resides with both parents equally during the year, then the parent with the highest Adjusted Gross Income (AGI) will usually be allowed to claim tax benefits for the child.

 

What if the IRS says I owe money on my ex’s taxes?

When you get married and sign a joint income tax return, both you and your spouse are agreeing to be responsible for any tax debt listed on the tax return. This means that you could be responsible for the entire tax debt, even if you did not earn any money that year or the debt belongs to your spouse.

Depending on your circumstances, knowledge of the tax debt, and other factors you may qualify for Innocent Spouse Relief. If you qualify for Innocent Spouse Relief you may not be responsible for all or part of the joint tax debt.

 

Do I qualify for Innocent Spouse Relief?

In deciding whether to grant relief from taxes, the IRS may consider whether:

  • Your spouse abused you;
  • Your spouse controlled your family’s finances;
  • You had or have a mental or physical health problem; 
  • You were involved in preparing your taxes;
  • You are unable to pay your bills;
  • English is your second language;
  • You are divorced, legally separated, or have been physically separated for 12 months;
  • Your spouse has a higher education level than you;
  • Your divorce decree requires your spouse to pay the tax debt; and
  • The debt is due solely to your spouse’s income.

 

The IRS may also consider other factors. Learn more about what you can do if your ex did the taxes wrong and you’re stuck with the bill

 


 

Take Action

 

Tax Preparation Help

You may be able to find free tax preparation help from a Volunteer Income Tax Assistance (VITA) site. Call 1-800-906-9887 or visit www.MontanaFreeFile.org to find a VITA site near you. 

 

Legal Help

  • Montana Legal Services Association (MLSA) provides free civil, non-criminal legal help to eligible clients. MLSA runs a Low Income Taxpayer Clinic (LITC) that helps eligible clients with their IRS tax problems. Learn more about how to apply for free legal help in Montana
  • If you live outside of Montana, you’ll want to look for free legal help in your state
  • If you qualify for help from MLSA, you may be able to get free legal advice from a volunteer attorney by email using Ask Karla
  • The State Bar Lawyer Referral Service may provide you with contact information for attorneys who provide the type of assistance you are seeking, for a fee. You can contact the State Bar Lawyer Referral Service at (406) 449-6577 or montanabar.org

 

Tax Forms

You can find many IRS tax forms at: https://www.irs.gov/forms-instructions

 


The clinic listed herein is partially funded through matching grants provided by the Internal Revenue Service pursuant to the Internal Revenue Service Restructuring and Reform Act of 1998. The partial funding by the IRS does not imply that the clinics have a preferential relationship with the IRS. The decision of whether to use these clinics is your own and their use will not affect your rights before the IRS.


 

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Last Review and Update: Jun 20, 2019
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