Can you claim a child as a dependent on your taxes if your divorce decree specifies you get to even if the child didn't live with you?

Question

If your divorce decree says you get to claim a child as a dependent on your taxes but the child actually lived with the other parent the whole year, can you still claim them on your tax return?

Answer 1

IRS Publication 504, Divorced or Separated Individuals, covers this in the section “Children of divorced or separated parents”:

Children of divorced or separated parents (or parents who live apart). A child will be treated as the qualifying child of his or her noncustodial parent if all four of the following statements are true.

1. The parents:

a. Are divorced or legally separated under a decree of divorce or separate maintenance,

b. Are separated under a written separation agreement, or

c. Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

2. The child received over half of his or her support for the year from the parents.

3. The child is in the custody of one or both parents for more than half of the year.

4. Either of the following applies.

a. The custodial parent signs a written declaration, discussed later, that he or she won't claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement that went into effect after 1984 and before 2009, or Post-2008 divorce decree or separation agreement, later).

b. A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2021 states that the noncustodial parent can claim the child as a dependent, the decree or agreement wasn’t changed after 1984 to say the noncustodial parent can’t claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during the year. See Child support under pre-1985 agreement, later.

So yes, you could claim the child as a dependent even though he or she lived with the other parent, but only if you meet all four of the requirements mentioned in Pub 504.

Make sure you click on the links in point number 4 in the quoted Pub 504, so you know what kind of documentation or additional form is required for your situation (most likely Form 8332).