Terre Haute, IN asked in Divorce and Tax Law for Indiana

Q: my 20 year old son lives at my house full time, can I claim him on my taxes? What if is his mother also claims him?

when my ex-wife and I got divorced many years ago, we had joint custody and alternated years claiming him on our taxes. Now that he is older, he never stays at her house. I ask her if I could claim him again this year because he always stays and she says no. What happens if I claim him and she does also.

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1 Lawyer Answer
James L. Arrasmith
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  • Tax Law Lawyer
  • Sacramento, CA

A: If your son lives with you full time and you provide over half of his support, you may be able to claim him as a dependent on your tax return. However, if your ex-wife also claims him, the IRS will likely flag the returns and investigate the situation.

If you and your ex-wife cannot come to an agreement about who should claim your son, the IRS has tiebreaker rules that determine who can claim him as a dependent. Generally, the custodial parent (the parent who has the child for the greater number of nights during the year) is entitled to claim the child as a dependent. However, if the child spends an equal amount of time with both parents, the tiebreaker rules consider which parent has the higher adjusted gross income (AGI).

If both you and your ex-wife claim your son as a dependent, the IRS may require both of you to provide evidence to support your claims. This could include documentation showing where your son lived during the year and who provided the majority of his support. If the IRS determines that one of you improperly claimed your son as a dependent, that parent could be required to pay back any tax benefits they received as a result.

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