I'm divorced or separated. Is it possible to claim my child as a dependent?

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

In most cases, the parent who has residential custody (it does not have to be legal) of the child for most of the year is entitled to claim the child as a dependent.
However, the non-custodial parent can claim the child as a dependent if the custodial parent gives away the right to claim the 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 his or her tax return. The custodial parent’s release of the right to claim the child can be permanent or cover one or more years.
You must live and support a child for more than half of a year to claim the child for purposes of the Earned Income Credit.

What happens if my ex claims my child but I am entitled to claim the child?

The IRS uses “tiebreaker rules” to decide who gets to claim a child when multiple people claim the same child. The IRS will examine the tax returns of everyone who tries to claim the same child and may require you to submit evidence to prove you can claim the child, such as proof of how you are related to the child, proof that you support the child and proof of where the child lives.

Does it matter what is in my divorce decree or parenting plan?

The IRS will generally not consider what is in your divorce decree or parenting plan.  Even if you have a divorce or parenting order giving you the right to claim a child for tax purposes, you can only claim the child on your taxes if IRS rules allow you to claim the child. 

How do I get more help?

Montana Legal Services Association (MLSA) provides free civil legal help to low-income people. Contact us to see if you qualify:
•    Apply anytime online at;
•    Call our Helpline at 1-800-666-6899 (Helpline hours are limited).

What help can I find at MLSA?

•    Legal advice and representation;
•    Referrals to volunteer attorneys and other providers;
•    Self-help clinics and materials.



Last Review and Update: Jul 24, 2017

LiveHelp is trying to contact an operator...