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.
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.
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.
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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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