Separated or divorced and who claims the children

Key rules

• Sole custody: The parent with sole custody claims the whole children's minimum.
• Shared custody: The minimum is split equally between both parents unless they agree otherwise.
• Court order needed: Child maintenance relief and a deduction for an ex-spouse pension both require a court decision, not a private agreement.
• Child maintenance: You cannot deduct child maintenance you pay, and the parent receiving it pays no tax on it.

Who claims the children's minimum

The parent the child lives with claims the children's minimum. Your situation is judged on 31 December, so what counts is who the child lives with and how old the child is on that day. If a parent dies before then, it is judged on the date of death.

Sole custody

If one parent has sole custody, that parent claims the whole minimum. If that parent chooses not to claim it, the other parent cannot step in unless the child actually lives with them. The allowance follows where the child lives, not who pays.

Shared custody

With joint custody, the minimum is split equally between both parents unless they agree otherwise. In practice, the tax office treats an equal split as the default. Do not assume any other split will be accepted. Agree in writing before filing, so each of you claims the same share and neither of you claims all of it.

For a joint return as a single parent, the child counts only if the child lives with that parent alone. Under shared custody, that applies to the parent who files with the child.

Child maintenance you pay

Child maintenance (anualidades por alimentos) set by a court is not deductible for you. It is also not taxable income for the parent who receives it.

The payer gets a softer tax calculation instead. The general tax rate is applied separately to the maintenance amount and to the rest of your taxable income, and the two results are added together. This helps only if:

• a court ordered the payments, and
• they are paid to the children.

Voluntary payments or private agreements do not qualify.

Pension paid to an ex-spouse

A compensatory pension to a former spouse reduces your taxable income, but only if a court decision set it. The person receiving it pays tax on it as work income. A private agreement that no court approved gives no deduction. Child maintenance is not covered by this rule.

Avoiding double claims

• Agree who claims each child, and in what share, before either of you files.
• Check where each child lives on 31 December.
• Keep the court order handy, since maintenance and pension treatment depends on it.

The decision and FAQ below help you work through your own case.

Choosing between options

Which parent claims the children's minimum after a separation?

• One parent claims all of it: One parent has sole custody (guarda y custodia exclusiva) and the children live with them: that parent claims the whole minimum.

• Both parents split it equally: Both parents share custody (custodia compartida): the minimum is divided equally between you unless you agree otherwise.

The children's minimum follows who they live with on 31 December. Child maintenance payments never change who claims; they only change how the payer's tax is calculated.

Frequently asked questions

Can I deduct child maintenance I pay after a divorce?

No, child maintenance fixed by a court is not deductible for you, and the parent who receives it pays no tax on it. You do get a tax break instead: the general tax rate is applied separately to the maintenance amount and to the rest of your taxable income, and the results are added together. This only works if a court ordered the payments and they go to the children, not under a private agreement.

Is a pension paid to my ex-spouse deductible?

Yes, a compensatory pension paid to a former spouse reduces your taxable income, but only if a court decision fixed it. The person who receives it pays tax on it as work income. Payments under a private agreement that no court approved are not deductible, and child maintenance is not covered by this rule.

What if the parent with sole custody does not claim the children?

The other parent can claim the children's minimum only if the children live with them, because the minimum follows who the child lives with. Being the other parent, or paying maintenance, is not enough on its own to claim it.