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Who Can Claim the Children on Their Taxes After a Divorce?

After a divorce, parents often wonder which one can claim children as dependents for federal and Georgia state taxes. As always, the answer largely depends on several factors. If the parties can reach an agreement between themselves, that’s great. Or they may require a court to hear the matter and issue an order. Let’s take a closer look at the claiming dependents after a divorce. 

IRS Tax Code

Under the IRS tax code, the general rule is that the parent who has the children in their custody 50% of the time can claim the children as dependents on their taxes.  If both parents have the children 50% of the time, the parent who makes more money can claim the children as tax dependents.

Suppose your divorce or child custody case goes to trial in a Georgia court. In that case, the rule under the IRS tax code will remain in effect because a Georgia court does not have the authority to issue an award to one party or the other that contravenes the IRS rule.  (Hulsey v. Hulsey, 300 Ga. 45.)

However, that doesn’t mean you still cannot be awarded the child dependency credits in a divorce or child custody case.  In Georgia, it just means the court itself, at a trial, does not have the authority to award the tax credit.  The parties themselves, in a settlement agreement (that is made into a court order), can award the tax credits and dependency exemptions between themselves however they want.  Courts have limited power over what they can and cannot award in a court order if the parties do not agree on an issue.  The parties, however, with a settlement agreement, expand the power of what a Georgia court can do.  You can do things in settlement agreements, and make them enforceable court orders, that a court itself could not do on its own.

Tax and Divorce Examples

For example, if you have twins, it only seems fair that each parent gets to claim one child on their taxes.  If you have one child that the parents could alternate the years they can claim the child.  This can only be done by the parties themselves in a settlement agreement and cannot be won or lost at a trial.

Attorneys often mishandle issues like this.  For example, the primary custodial parent often gives away this right without knowing they can’t lose this right if it goes to trial and gets nothing in return.  Meanwhile, the non-custodial parent is sometimes given a false impression that they should forego settlement because the trial court can award them the dependency credits.

It should be noted that even if the trial court does not have the power to award the child dependency credits to the non-custodial parent at a trial, that doesn’t stop the court from making a deviation in child support for the value of those credits.  Sometimes, it’s more how you attack the problem that matters rather than the problem itself. That’s why having a great attorney on your side is essential. 

Do you have questions about claiming dependents on your taxes after a divorce? 

We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at

Scott Shaw
Shaw Law Firm, PC
(770) 594-8309 (phone or text)
[email protected]