The first answer to this question is always the same; check your divorce decree. The decree should spell out who gets to take the kids as dependents. Here are the general rules if the divorce decree is silent. The first matter to address is whether or not the child is a qualifying child. Under the IRS rules, a qualifying child is a child who is related to you, lives with you for more than one-half of the tax year, hasn’t attained a special age, and hasn’t supplied more than one-half of his own support for the calendar year. The age rule applies as follows: You can deduct the child if the child is no older than 18, the child is no older than 23 and the child is in school; or any age if the child is permanently and totally disabled. If the parent is the non-custodial parent, the child can qualify as your dependent if: The child receives over one-half of his support during the calendar year from you and the child’s parents meet one of the following requirements: The parents are divorced or legally separated; The parents are separated under a written separation agreement; or The parents live apart at all times during the last six months of the year. The best way to make certain that you comply with the rules, is to see a qualified income tax preparer. The preparer can help you through this maze of regulations. This guide does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance. Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
If you are interested in reading more on this subject, click the link below for IRS Publication 503. This publication discusses child and depend care expenses.