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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.

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..

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Attorney answers 4

Posted

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.

Posted

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.

Posted

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.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

it is true that there is nothing in the law, case, rule or statute, that requires a payor to be current to get the exemption. but, until he or she is current, i have yet to see a judge award it to a payor. if he had the money for a lawyer, i would tell him to use that money to pay the arrearage. a judge then would not ask him, why are you still behind but you had the money for a lawyer? wes, this is not a law school exam question. these are real people in court now. the practical answer is get current first, then move for the exemption.

Wes Cowell

Wes Cowell

Posted

I think you're mostly right. This case, however, I find a little out of the ordinary. It depends on the facts: if (and I used the "if" in m answer) she's unemployed or under-employed, the exemption does her no good and everyone would benefit by shifting the exemption to him. Even if she has a F/T job, here's a guy who's made all of his payments, current support and arrearage, for over six years and wants to have the exemption in alternating years (as is common) not to benefit himself but to catch up on the arrearage. Any money he saves in taxes is going not into his pocket, but Mom's. Let's keep in mind, too, that the bulk of the arrearge accrued in the first year when he didn't even know the child existed. But for Mom's secrecy, there would be no arrearage. I think its a persuasive argument.

Posted
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