When two parties with children are divorced, the custodial parent usually claims the children.  However, this is not always the case and the non-custodial parent may claim the children either by Court Order or by agreement of the parties.  This usually occurs when the non-custodial parent is better able to take advantage of the tax savings associated with the dependent exemption.

 

 

However, if a taxpayer seeks to claim dependent children after a divorce but is not the custodial parent, he must file Form 8332 with his return.  This form requires a lot of information and must be signed by the custodial parent.  Otherwise the dependency claim will be denied.  The IRS can accept a court order attached to the return instead of the Form 8332, but it must contain all the information required in the Form 8332, including the other spouse’s signature.  This requirement is governed by Section 151 of the Internal Revenue Code.  An Order that meets all of the requirements would usually only happen if a Separation Agreement signed by both spouses is attached to the Order.  One who seeks to claim the exemption but is not the custodial parent should obtain this Form and be sure it is filled out or that the divorce order contains all the information required in the Form.