Friday, June 26, 2009

After a Divorce Who Claims the Child as a Tax Exemption?

The appellate court in today's divorce decision of Canavan, Jr. vs. Canavan, restated two known maxims that every divorce lawyer and their client better remember: read the fine print and know the law. In the case of Michael and Elisabeth Canavan, Jr., the couple had a five year old daughter when they divorced in 2007. As part of their divorce settlement agreement, the child was to reside with her mother, Elisabeth. The parties could not agree on who was going to claim the child as a tax exemption so the issue was not addressed in their Property Settlement Agreement and final divorce judgment. Within a year of the divorce, the father went back to court to be able to claim the child as an exemption in alternating years. The trial court initially agreed with the father, then thereafter, reconsidered and sided with the mother. An appeal was filed and the appellate court reviewed the applicable divorce law and divorce settlement agreement. The court first identified that the IRS Code grants the custodial parent the exemption unless that parent waives the exemption. In this case, Elisabeth being the custodial parent never waived the exemption. The court then reviewed the couple's multi-page divorce settlement agreement which contained the clause, "no issues were unresolved in this matter and all issues pleaded and not proven are deemed abandoned." As a result of not resolving the issue and the insertion of this clause, Michael, the father, was thereafter precluded from seeking the exemption. The moral of the story, resolve all the issues before signing the agreement and always read the fine print. At Montclair Divorce Mediation, we ensure that the divorcing couple reads and understands the full divorce settlement agreement.


  1. If the custodial parent earns 25% less than than the non custodial parent and is receiving child support which brings her equal in income to the non custodial parents income, is she entitled to alimony?

  2. Ya its good to solve all the issues before signing the agreement to stay hassle free.Divorce online