If your ex hasn't worked and isn't claiming your kid, you might assume you should go ahead and get the deduction so it doesn't go to waste. However, doing so might violate tax laws if you don't meet the definition. Your ex might also choose to claim the deduction later, causing you to incur a significant tax liability in the future.
The Internal Revenue Service has strict rules about claiming dependents that might interfere with you being able to claim the dependent exemption or earned income credit. You have to be able to show that your kid is financially dependent on you. This is demonstrated by showing that no other person is able to claim the child. So if your ex is living with parents or is remarried, if the grandparent or new spouse claims the child, you can't. Likewise, if someone is claiming you as a dependent, or if someone can claim your spouse if you are filing a joint return, you can't claim the child.
Qualifying Child Definition
Not all children are necessarily dependents. The IRS defines a "qualifying child" as your child or stepchild. Just because your ex isn't filing taxes doesn't mean that his wife won't claim the exemption. Also, the child must reside with you for more than half of the year to meet the IRS definition. If your child split exactly six months of his time with you and your ex, neither of you can claim the deduction. The kid must be under 19 as of Dec. 31, or she must be under 24 if she's a student. If your child is working, she may not be a qualifying child if she provided more than half of her own support for the tax year.
Taxpayers can amend their tax returns three years out from the original filing deadline. So, your ex might not claim the child this year but may choose to retroactively claim the child. The IRS might make your ex prove he was entitled to the exemption, but if he proves this, you might wind up having your tax return adjusted and owe money to the federal government.
Even if you might otherwise be able to claim your kid as a dependent, the divorce decree or custody order might trump. If the legal order states your spouse has the right to claim your kid, that's what you go by. IRS Form 8332 Release of Claim to Exemption for Child of Divorced or Separated Parents allows you to claim the tax exemption if your kid technically spends less then six months of the year with you but the order lets you claim the child anyway. You have to complete this form and send it in with your tax return. If the order is silent on the matter, alternating years or splitting the exemptions for multiple children might provide a fair way to claim the exemption.
Samantha Kemp is a lawyer for a general practice firm. She has been writing professionally since 2009. Her articles focus on legal issues, personal finance, business and education. Kemp acquired her JD from the University of Arkansas School of Law. She also has degrees in economics and business and teaching.