Legal Question in Legal Ethics in California

Is it legal for my ex to claim our son on his taxes (2,000 behind on child support) in order to use money to catch up? He did not support, live with, or even pick up his son on his scheduled days. He is planning on claiming him so that with the money he can catch up on child support.

Asked on 1/08/13, 9:14 pm

3 Answers from Attorneys

Charles Perry Law Offices of Charles R. Perry

The question is whether your son is a "qualifying child" -- and therefore a dependent -- for purposes of your husband's tax returns.

IRS Publication 17 sets out the test to determine for determining whether someone is a "qualifying child" for federal tax purposes. In most cases, the custodial parent is the only one who can claim the child on his or her taxes. This is because the test for a "qualifying child" requires that the child live with the taxpayer for at least half the year.

It is possible in some cases for the noncustodial parent to claim the child as a dependent, so the facts of your situation need to be fully explored with your tax preparer or lawyer.

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Answered on 1/09/13, 1:35 am

Anthony Roach Law Office of Anthony A. Roach

You need to repost this question in family law. This category is for people who have questions concerning the laws and rules governing the practice of attorneys in California. Posting in the wrong category causes confusion for other people who read these.

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Answered on 1/09/13, 7:30 am
Timothy McCormick Libris Solutions - Dispute Resolution Services

Mr. Roach is correct, which is why you haven't gotten a straight answer yet. The answer is that unless he had greater than or equal to 50% custodial time AND your divorce judgement does not specify that you get the deduction, then it is illegal for him to claim the deduction UNLESS you consent and release the deduction to him. There is a form you would sign and he would file with his taxes to do that. IRS Form 8332. Personally I would refuse to do it for a few reasons - 1. I'm not sure I'd trust someone who is $2,000 behind on support to pay me the support once he gets the refund. 2. If he's earning enough that he will really get $2,000 extra from the IRS if he gets the deduction why in the world can't he just cut a check for the $2,000 (for most people the exemption does not result in anywhere NEAR that much of an extra refund). 3. How do you know he will get a refund at all, instead of this just reducing the taxes he owes, and MOST IMPORTANT 4. Why let him pay you the back support he owes you by making YOUR taxes go up!?!?!?! That's just taking your money and giving it back to you and saying he's paid what he owes you.

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Answered on 1/09/13, 12:11 pm

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