Claiming Child As Dependent

[Tara1]

According to our divorce agreement I am considered the "non custodial" parent.  The agreement does not mention anything about taxes.  My son has lived with me for 8 months.  We never changed the divorce agreement.  Can I claim him on taxes?

[rjs]

The IRS follows its own definitions of custodial parent and noncustodial parent. The IRS is not bound by your divorce agreement. If your son lived with you for 8 months, then as far as the IRS is concerned you are the custodial parent for that year, and you can claim your son as a dependent. However, if the intent of the divorce agreement was to let your ex-spouse claim your son, your ex could challenge your claiming your son in the divorce court or family court. The IRS provides a way for you to allow your ex to claim the child, by signing a Form 8332 and giving it to your ex. The court might force you to do that. Then you would not be able to claim your son.

From what you said, it sounds like the divorce agreement is not clear about which one of you can claim the child as a dependent on your income tax returns. In that case, you should consult your divorce lawyer before you do anything else.

[Hal_Al]

For tax purposes,the custodial parent is the parent the child lived with for more than half the year, regardless of "legal custody".
As far as the IRS is concerned, The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.
This may be helpful in your negotiations with the ex:
 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him, voluntarily or under a court order.