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It’s Time to File Taxes – Who Gets to Claim the Child(ren)?

Every tax season, family law attorneys field a common question – how does the court determine which parent claims the child(ren)? Only one person can claim the tax benefits related to a dependent child. Parents can't share or split up the tax benefits for their child on their respective tax returns. It's important that each parent understands who will claim their child on their tax return. If two people claim the same child on different tax returns, it will slow down processing time while the IRS determines which parent's claim takes priority.

One of the most common misconceptions is that it is the parent who has the child the majority of the time that gets to claim the tax exemption. In reality, the parent who claims the child is determined in one of two ways: (1) by agreement of the parents, or (2) pursuant to Colorado law under Colo. Rev. Stat. 14-10-115(12).

Colorado law requires a judge to allocate child tax exemptions in proportion to each parent’s contribution to the costs of raising the child. In most situations, the court will rotate the right to claim the child on a schedule according to each parent’s income. For example, if one parent earns one-third of the total gross income between the parties, the court will usually order that that parent claim the child every third year (or one-third of the time) and that the higher income earner claim two out of three years. This law surprises a lot of parents who assume—understandably so—that the parent who has the child the majority of the time will get to claim the child on their tax return.

There are two situations where a parent can be disqualified from claiming a child. Colorado law states that a parent is not entitled to claim a child if the parent has not paid all court-ordered child support for that tax year. Additionally, a parent cannot claim a child if there would be no tax benefit.

Burnham Law continues its rich history of award-winning family law representation. If you are in need of a family law attorney, Burnham Law is your answer.

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