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Who gets to claim the Tax credit for the Child Dependency Exemption after a divorce?

An exemption is an amount of money you can subtract from your Adjusted Gross Income ("AGI") when calculating your tax burden, which can result in smaller tax bill. Parents may be able to claim an exemption for each qualifying child, called a Child Dependency Exemption ("CDE"). A child can only be claimed by one parent per year. As such, one of the collateral issues to a divorce with children is which parent gets to claim the children as a CDE on their personal tax return.

In Colorado, the parties can choose which parent will receive the exemption. If the parties cannot agree on how to divide the CDE, a statutory rule governs the same. See, Colo. Rev. Stat. § 14-10-115(12). First, in order to receive the CDE, a parent must have paid all court-ordered child support for that tax year and claiming the CDE must result in a tax benefit.

If those factors are met, the Court will determine the contribution attributed to the child by each parent based on the percentage contributed to the parties' gross income. It is important to note that the CDE does not depend on who the child lives with the majority of the time. If the minority time parent has paid all court ordered child support, they have a right under the statute to claim the CDE. Similarly, if the minority time parent makes significantly more income than the majority time parent, and is current on child support payments, he/she is entitled to claim the dependency exemption more often than the majority time parent.


Father makes $10,000 per year and Mother makes $5,000.00 per year. The parties combined gross income is $15,000.00 per year. Mother makes 1/3 of the parties combined gross income and Father makes 2/3 of the parties combined gross income.

Under Colo. Rev. Stat. § 14-10-115(12), Father is entitled to 2/3 of the dependency exemptions and mother is entitled to 1/3 of the dependency exemptions. Accordingly, the Court would likely allocate the CDE for Father to claim the child for two (2) out of every three (3) years.

It should be noted that the parties can agree to negotiate or change this outcome and not follow this statute. This is just one subset of the many intricate matters that can be negotiated by a skilled family law attorney to get you the best possible outcome in your divorce.

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