Is My Ex Allowed To Claim Our Child On His Taxes Even Though He Owes Back Child Support?

A divorced mom writes in looking for advice on if she has the right to file taxes for her child even though it is her ex’s turn. He hasn’t paid any child support in over two years, and she feels it isn’t fair.

A Community Member asks:

Is anyone familiar with the laws on filing your children on taxes? According to the divorce, we rotate, claiming our daughter every other year. This would be his year according to the divorce (2017), but he hasn’t paid child support in 2 years. Not once. Is he still allowed to file her? I don’t feel like it’s fair at all. I don’t want to get into any legal trouble, but I feel like I rightfully should file her. I’ve been the only one providing everything.

-Mamas Uncut Community Member

Community Advice For The Mom Looking For Advice On If Her Ex Has The Right Claim Their Child as a Dependent on His Taxes

To see what advice the Mamas Uncut Facebook community has for this divorced Mom, read the comments of the post embedded below.

Fan QuestionIs my ex allowed to claim our child on taxes?Is anyone familiar with the laws on filing your children on…

Posted by Mamas Uncut on Saturday, January 25, 2020

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Advice Summary

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The advice for this Mom was pretty consistent. Follow the court order. You can read the responses below.

He is legally the one to claim her. If he owes back support his refund will be taken and applied to what he owes anyways.

File a court petition now to change the previous judgment. Use his failure to support your daughter as a reason. Why should he be allowed to profit off your child?” 

“Yes, you should get some of his taxes for past child support. But I believe it’s only a percentage of his return. You probably won’t get all that he owes & what you will get for claiming her. Let his child support build-up while you get your rightful return.”

He can’t legally file without you signing an 8332 if your order is from 2009 on. Regardless of what that order says. That 8332 form has to be signed by the custodial parent releasing your claim. You can get in trouble with the court that wrote the order if he takes it that far but not by the IRS. You can no longer attach decrees to taxes to claim children on taxes.

I’ve worked for the IRS. You have to go by what the court order states. Regardless if he’s paid or not or if you’ve provided more or not. I’d take him back to court and get that part changed if he hasn’t been paying for that long.

He can file but if he hasn’t paid child support you will get the money. Always follow court orders no matter what.”

Final Thoughts

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I think these situations are always so tricky. If you don’t know much about custody laws or tax laws, your suggestions or advice would be given blindly. There were a few commenters who knew enough of the laws to give very sound advice.

Following the court order is always in your best interest. It would be wise to report the unpaid child support if it’s not paid through the court. If it is, then they will withhold his taxes to pay child support and they will do this until he is caught up.

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