ABA Family Law Section
Oklahoma Bar Association
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Oklahoma Bar Journal

Children, Divorce and Taxes

by Evan Taylor, Esq. Posted January 15, 2014

Do you have uncertainty regarding your taxes because of a recent divorce with children? According to the IRS, there were 146,243,886 individual income tax returns in 2012, so we want to ensure that you are confident in your accuracy when filing your taxes. Our three part tax series will answer your common questions regarding children, divorce and taxes.

Part 1: Children and taxes

We will look at the Internal Revenue Service (IRS) rules on which parent can claim the children if there is no court order and the parents are not filing a joint tax return.

If there is no court order directing which parent may claim the children, then the right to claim the child is set by IRS rules alone. These rules require that the child have lived with at least one of the parents for more than 50 percent of the year. In this case, the IRS presumes that at least one of the parents has provided more than 50 percent of the necessary support of the child.

The next step is to look at which parent is the custodial parent. The IRS defines a “custodial” parent as the parent having custody for the greater portion of the year. In other words, the parent with whom the child lives for most days during the tax year. The IRS will treat this parent as the one providing more than 50 percent of the support regardless of the actual amount paid by the non-custodial parent.

If the child has lived with both parents for the same amount of time, then the parent with the highest adjusted gross income has the right to claim the child.

We understand that filing taxes is a complicated process, and adding divorce and children to the equation can be confusing. Stay tuned! The second article focuses on allocation the tax exemption to the non-custodial parent, and part three covers tax orders in decrees and best practices.

For questions regarding children, divorce and taxes, please feel free to email me at

Evan Taylor

Evan Taylor, Attorney at Law 

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