My ex was just recently served with child support and I have not received a payment yet. I have been raising our 3 year old daughter soley on my own and he has no contact with her whatsoever. He states that since he is paying child support now, mind you I have not received a payment yet, he is going to claim my daughter on his taxes. Can he do this? I live in Iowa if that makes a difference.
2007-12-10 02:25:06 · 10 answers · asked by Sarah 1 in Business & Finance ➔ Taxes ➔ United States
The rules are clear on which parent may claim the child, and it is not related to payment of suppport. (And there's no such thing as a "partial exemption" as stated by one clueless poster.)
The custodial parent get's the exepmtion according to the law. The custodial parent is the one with whom they spent the most time during the year. That would appear to be you from what you say.
There are ONLY two ways that your ex can claim the child:
1. You voluntarily give up the exemption by completing a Form 8332 or similar written statement and giving it to him. He must attach this form or statement to his tax return.
2. If your divorce decree states that he may take the exemption AND meets strict requirements laid out in federal law. Among other requirements, there must be no precondition on the exemption such as payment of child support and the decree must stipulate the year or years that he may claim the child. If your decree does not meet these stipulations -- and many decrees do not -- the IRS is bound by law to ignore the decree and award the exemption to the custodial parent.
If both of you should claim the child, the IRS will contact you both and ask you to either file an amended return without the exemption claim OR to provide proof of your claim. They will then decide who gets the exemption according to the law.
If you e-file and your return is rejected because your ex already filed you will have to file a paper return. The IRS will then be in touch to resolve the issue as described above.
Don't be intimidated by this. You will win out in the end!
2007-12-10 02:49:24 · answer #1 · answered by Bostonian In MO 7 · 2⤊ 0⤋
As usual, out of 7 responses, FOUR have errors.
Suzanne, Wayne and Bostonian are correct. As custodial parent, unless you have given the non-custodial permission to claim your child (either by divorce decree or form 8332), of the two of you, you are the only one entitled to claim your child as a dependent. This is true whether he pays $0, some or all of the child's expenses.
I really wish the the other 4 posters would carefully read IRS publication 501. Child support payments between divorced and separated parents STOPPED being a criteria back in 1985. That was 22 years ago! Where the divorce rules don't apply, the definitions of a qualifying child changed in 2005. This will be the third year under the new rules.
The belief that the divorced dad deserves "something" if he's paying child support is understandable, but a total disservice when it comes to doing taxes. When the IRS sees both parents claiming the child, they will ask questions. As soon as they see it's a child of divorced/separated parents and it's clear who has custody, they will look to the non-custodial parent's return for a form 8332. When it's not there, that parent will automatically have their taxes recalculated. Not only do they have to pay the money back, they will owe penalties and interest. (And if they fraudulently claimed HOH and EIC based on that child we can be talking $5000!)
2007-12-10 03:47:13 · answer #2 · answered by Anonymous · 0⤊ 0⤋
Unless there's something in your divorce decree saying that he can, with all the proper stipulations, no he can't unless you give him permission. Since you are the custodial parent, the claim is yours. You can sign it over to him if you want to, but otherwise he can't legally claim her.
If he does, and you do also, you'll both get a letter from the IRS asking you to prove you have the right to claim her. It'll be easy for you, impossible for him - so he'll have to pay back anything he got or saved, plus interest and possible penalties.
2007-12-10 12:46:42 · answer #3 · answered by Judy 7 · 0⤊ 0⤋
Wayne Z is correct
"The payment of child support in no way
automatically gives him the exemption."
It should have been stipulated in the divorce too.
But here is a sad fact. The IRS doesn't have your divorce decree. If he files his taxes first and claims the daughter, he'll get it. You may be entitled to it, but he'll still get it. You'll have to enjoin a legal fight to get the money that is yours. When I worked at H&R Block, I saw it happen. The tax preparers don't know any better either. They only know what you tell them.
2007-12-10 02:46:14 · answer #4 · answered by Griffin 4 · 0⤊ 2⤋
The payment of child support in no way automatically gives him the exemption.
In absense of a divorce decree addressing the exemption issue the exemption goes to the custodial parent.
My advice to you is to file early and file electronically.
2007-12-10 02:34:31 · answer #5 · answered by Wayne Z 7 · 3⤊ 0⤋
Just say you just file your taxes and claim your child. Child Support has nothing to do with taxes. Alimony is taxable. Then if your ex files and claims your child he'll have a problem.
2007-12-10 10:02:18 · answer #6 · answered by Gary 5 · 0⤊ 0⤋
If you report him the state will take what he owes you out of his tax return. The only way he can get out of this is, if he was married and claimed an injured spouse, and he would get the amount taken but it would be sent back to him. So contact your point of contact, they can take it out of his pay check for him. Also he can't claim the child for taxes unless he has had her more then 6 months out of the year, or the decree states he can.
2007-12-10 02:34:18 · answer #7 · answered by krennao 7 · 0⤊ 2⤋
I'll assume that you've raised her, on your own (and at your own expense) for the full year. I'll assume that I understand correctly: he hasn't paid a dime this year.
If this is the case, then you can claim her and he cannot.
The requirements for claiming a child are clear. Your husband neither has custody nor has he carried any expense. He doesn't qualify.
However... if he's paying child support, then he's entitled to at least a partial allowance.
Given that there's only 3 weeks left in the year, I cannot imagine that his allowance would be significant.
2007-12-10 02:36:08 · answer #8 · answered by Jay 7 · 0⤊ 4⤋
He cannot claim your daughter as a dependant because she does not live with him and also he has not made any payments but if he pays child support he has the right to claim her as a dependant
2007-12-10 02:34:31 · answer #9 · answered by boss 2 · 0⤊ 5⤋
Do you have court papers saying who can claim her? In my divorce, my papers say I can claim my son. If you have papers saying you can, make a copy and send them with your tax papers in the spring for proof.
2007-12-10 02:31:23 · answer #10 · answered by Anonymous · 0⤊ 1⤋