Claiming the dependency exemption after a divorce.

• Author: Ellentuck, Albert B.

Facts

Truman and Rosemary were divorced in February 1993. Their daughter Tammy lives with Truman for two months, and with Rosemary the rest of the year. Truman pays $500 a month in child support (which is more than half of Tammy's support). Rosemary wants to know if she can claim Tammy as a dependent.

Issue

Can Rosemary claim Tammy as her dependent this year?

Analysis

The support test for a child of divorced or separated parents is based on special rules if:

1. The parents are divorced or legally separated under a separate maintenance agreement, or lived apart at all times during the last six months of the year;

2. one or both parents provide more than half the child's total support for the entire year; and

3. one or both parents have custody of the child for more than half of the year.

   The support test for divorced or separated parents does not apply and the support test for all other persons is applicable if:

1. a third party provides at least half of the child's support;

2. the child lives with someone other than the parents for at least half the year;

3. the child's support is determined under a multiple support agreement; or

4. a joint return is filed by the parents.

   The general rule as to who can claim an exemption after the parents' divorce for purposes of the support test depends on the date of the divorce. Under a pre-1985 agreement, if the exemption is awarded to the noncustodial parent in the divorce decree, that parent is required only to document at least $600 of child support to claim the exemption. Also, the noncustodial parent will be treated as providing more than half of the child's support if the custodial parent signs a written declaration that he or she will not claim the dependency exemption; Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, is used to make this declaration and must be attached to the noncustodial parent's return. After 1984, the parent who has custody for the greater part of the year will be treated as having provided more than half of the child's support and generally can claim the dependency exemption (assuming all other dependency tests are met).

   Thus, because Rosemary had custody for the greater part of the year, and assuming all other dependency tests are met, she can claim the dependency exemption for Tammy. Under a post-1984 divorce decree, the custodial parent is assumed to have provided more than half of the dependent's support. The fact that Truman actually...