How do I get to claim my son on my income taxes? His mother has claimed him for the last 12 years but I pay child support.

Asked over 1 year ago - Chicago, IL

I didnt know I had a son until he was 1.I was 17 and owed a year of child support from the start.I got a scholarship to college but took out loans to pay child support but the loans ran out over the summer so I would take him for the summer. I owe about $6,000 in back support from the first year of his life and then the 4 summers I was in college. If I got to claim him on my taxes I would be caught up fast since I dont get tax returns anyways (they go directly to his mom)...I tried to get a court date but they said unless the custody agreement was broken I couldn't but then found out there is no legal custody agreement, so there is not one to break...I spoke to a lawyer who told me the judge would never let me claim him since I owe back support, but I have paid taxes on that support..

Attorney answers (4)

  1. Judy A. Goldstein

    Contributor Level 20

    5

    Lawyers agree

    Answered . The lawyer spoke the bare truth. The tax exemption for a noncustodial parent is based upon the parent being current in his/her support and may be allowed only by agreement or court order and after the custodial parent signs IRS form 8332 permitting the other parent to take the exemption. You waited 12 years to ask this question and that was part of your mistake. If you ask your son's mother, perhaps you can work something out.

  2. Gary L. Schlesinger

    Contributor Level 20

    5

    Lawyers agree

    Answered . judy is correct. no exemption for you until you are current in support. then do a motion asking for it. you may not win that. without a court order giving you the exemption, you may not claim it.

    it saves you tax on your marginal rate on $3800 of income. plus some for the state. argue this strenuously if mom files a college petition against you. the exemption is worth a lot more for a college child.

  3. Wes Cowell

    Pro

    Contributor Level 18

    3

    Lawyers agree

    Answered . I disagree with the other answers. First, there's nothing in the law that says you can't get the dependency exemption if you're behind in support. It's just a common sense "judge" thing: it sounds like the court would be giving an added benefit to a deadbeat. But that's not what's going on, here.

    If I understand you correctly, you fell behind by twelve months and that was twelve years ago. Since then, you've fallen behind by an additional twelve months and that was over a few months each summer for a period when your son was, say, less than six years old.

    Since then -- the last six years or so, you've paid all of your current support and you've made headway against the arrearage, right?

    If that's all the case, then depending on your -- and Mom's -- income and other financial considerations, I think you've got a GREAT argument to get the dependency exemption. All other things being equal, giving you the dependency exemption will increase your net income and that will increase your support obligation and also allow you to catch up on your past-due support. Looking at the analysis from the child's point of view, it's a win-win. It all depends, however, on Mom's and your income and financial factors. If taking away the exemption from Mom would hurt her more than giving it to you would help reduce the arrearage, then it's not going to happen. You'll have to get Mom's financial info.

    You'll need an attorney.

    Questions? Call -- 312-987-9999 -- no charge, no obligation.

  4. Christopher Michael Larson

    Pro

    Contributor Level 19

    2

    Lawyers agree

    Answered . You would need a state court order. Without that, the parent that has the child a greater number of days during the years gets to claim the child.

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