The primary parent is presumptively entitled to the tax exemptions for the minor child.
Under the Internal Revenue Code Pursuant to section 152(e) of the Internal Revenue Code, the custodial parent is entitled to the child tax exemption if the child receives over half of his support during the calendar year from his parents who are divorced or legally separated under a decree of divorce or separate maintenance, and such child is in the custody of one or both of his parents for more than one-half of the calendar year. The “custodial parent” is defined by IRC 152(e)(3) as the parent having custody of the child for the “greater portion” of the calender year. The statutory guidelines presume that the primary parent will take the exemption.
In Sertic v. Sertic, 111 Nev. 1192, 1197, 901 P.2d 148 (1995), the Nevada Supreme Court court found that it was not an abuse of discretion for the district court to order parties to alternate the exemption when the parties share custody of the child, but the district court should have broad discretion over the matter.
Since the exemption is a form of child support, awarding the income tax exemption to the noncustodial parent constitutes a deviation from the statutory guidelines. If a district court is permitted to allocate the exemption to the non-custodial parent, it will erode the sufficiency of child support payments and defeat the primary purpose of the statutory presumptions. Therefore, absent extraordinary circumstances, the custodial parent should be awarded the federal income tax exemption.
The Las Vegas divorce attorneys at Pecos Law Group are experienced family law lawyers and can assist in child support and other areas of family law.