Tax Question, This CAN'T Be Legal, Can It??

Updated on January 31, 2011
J.S. asks from Spring Hill, FL
16 answers

My husband I have had legal custody of our nephew and niece for 6 years now, and have always been able to have them on our taxes as deductions each year. Their biological parents, one out of state and one in state, paid no child support for the 1st 3 years that we had custody. The bio Mom started paying the minimun support based on her pay about a year and a half ago, but has since lost her job and stopped paying. The bio Dad started paying in 2008, a very small amount, and then in Nov. 2009 he was taken in for a support modification because his income had gone up ALOT. He has been paying on a regular basis ever since then, however we do not get the support very regularly, and he knows this. The problem is his company takes their time sending it in, (it's deducted from his pay), and also he owes several thousand in arrears to the state and they keep taking money from OUR support instead of going after him. Long story short, we have yet to get our court ordered amount , and he owes us thousands in arrears as well. Fast forward to now. He sent us an email telling us that he will be taking his daughter as a deduction on his income taxes this year since he is paying so much in support now. (he pays the MINIMUM based on his pay and NO insurance or child care, etc) We told him NO, that he could NOT use her as a deduction, that we were. My question is, can he do it anyway? He will be filing before we do since he has all of his paperwork now, and we are waiting for ours still. The kids do not live with him for ANY part of the year. As a matter of fact, we are LUCKY if he takes them for a total of 4 overnights in the whole year! He has spent more time in OUR home to visit them, (eating our food, using our hot water, etc) on holidays and birthdays, etc, than they have going to visit him all year long. We had asked him to start taking them on regular visits 2 weekends a month, school vacations and for at least a month in the summer, but he tells us he can't because it would be too difficult and he would not be able to work his overtime hours at work. (he works overtime on a regular basis to make extra money) We would LOVE to have the child free time to be able to get some things done here, or for my husband to be able to work some overtime and for me to work and make some extra money, but we are always the ones who have HIS children. (I say HIS, but after 6 years they are as much ours now. Biologically though, they are not our kids) There is so much more to this long story, and so many reasons to be agrivated, but what I really want to know is can he really deduct his daughter on his taxes without our permission, just because he is the biological father, even if she doesn't live with him? He justifies it because he pays support. Thanks and sorry this is soooo long.

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So What Happened?

Too add on a bit of info:
We have legal custody of the 2 kids, not just guardianship. It is not temporary, it is permanant. They will be with us until they are adults. (possibly after since they both have dissabilities of one degree or another, and no there is no disability money involved here) The arrears owed to the state is not from any AFDC or welfare money that WE had recieved from them, but from a very short time in the very beginning when we were fighting with the bio parents and DCF (on our side) to get custody of the kids in court, and got something called "relative caregiver funds" which is similar to what you would get for a foster child. This money however, has been OVERPAID back by our records from what we ever recieved, and there is still money owed to the state by the bio father for court costs, etc that is not our responsibility to repay. Also, even the arrears that came from the relative care funds were not supposed to come out of our monthly child support, but from tax refund interceptions, as well as a small monthly payment he was making for that purpose. He was and is also supposed to be making a monthly payment towards the 3 years of arrears that he owes us which we have yet to recieve. As far as the job making the support payments after the payroll deductions, they know exactly how long they have, and make them at the last moment possible. Also, a few times they made them a couple weeks after the time allowed, and it takes an act of congress to get the department of revenue to actually take action against the employer when they don't send the payments on time. Especially if you have recieved any payments in the last 6 months. (they look at you like you have no room to complain) I wonder how they would like to go even a couple weeks without THEIR paycheck? The bio Dad makes very good money, and has a great job, after all, we had his children full time and the state paid for him to go back to school full time. He makes more than most professionals in this area. He has NO financial problems, and recently saved (within the last 2 years) over 25K to put down on the purchase of a home in the city he works in. I wouldn't care about any of this if he was doing what he was supposed to be doing for the kids, and wasn't trying to claim one of the kids on his taxes. Even the tax thing wouldn't bother me so much if he was more of a parent and they actually spent some TIME with him at HIS home. It just doesn't happen, and we NEED our tax refund to help with the kids expenses. I am not even sure why this is such a big deal to him as he won't even be getting his refund anyway. It will be intercepted and will go to the state anyway. Next year we should get it.

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answers from Honolulu on

From what I understood, you can claim a child if you have that child sleeping there at night more than 50% of the time. She doesn't even see her dad...



answers from Louisville on

All you'll have to prove to the IRS is that you provide all for the children - child support is NOT counted as income, therefore he CANNOT use it to claim her as a dependent! If he does, the IRS will love going back over his stuff and seeing what else they might find!!

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answers from San Francisco on

Sorry to hear that you're going through this. I'm having my own issues with child support from my ex husband, but from what I was can only claim your children if they reside with you for more than 6 months of the year..which they do. If he was to go ahead and file and claim them on his tax returns, he will eventually be audited. You both will receive a notice because of the children's social security numbers, etc. You can prove that the children live and that you take care of them..he can not. Since he owes so much as well..even if he was to get any amount of a refund...they will take that from him for any arrears as well. I don't think he's thinking "clearly" on this one.

You may also speak with an attorney just for extra information and seek a tax professional to make sure.

Good luck!

2 moms found this helpful


answers from Sacramento on

Go to a CPA to have your taxes done this year. That way you KNOW you are in the right with all of your deductions. In my opinion, having good tax advice is worth its weight in gold. It doesn't matter what the bio dad does on his taxes; the worst that can happen is that you'll both be audited. Even if that happens, as long as you have all your ducks in a row, there won't be anything for the IRS to pick on.

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answers from Rochester on

Contact the IRS, and have your information ready. They will be able to help you, and will be alert to potentially deny his claim and do an audit.

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answers from New York on

You will need to mail your tax return to the IRS instead of electronically filing it. When you mail it in, include a letter explaining the situation along with the custody order from the court and the chlid's report card and/or doctor's records, these will establish where the child lives definitively. It will take some time for you to get your refund but you will get it.

I'm an accountant and have went through this personally with my neice and nephew a few years ago.

1 mom found this helpful


answers from San Antonio on

Call the IRS. Explain the situation and ask what the IRS requires. Be sure to tell them that you have custody of the children, and he does not.
If you get the answer from the IRS then you know you have the correct information.

Here's the phone number for the IRS: 1-800-829-1040
Hours of Operation: Monday – Friday, 7:00 a.m. – 10:00 p.m. your local time (Alaska & Hawaii follow Pacific Time).

Also, you can contact your local IRS office. This website has a locator search on it if you'd like to call or go to the nearest IRS office.

I was in a similar situation many years ago, and I called the IRS. They were extremely helpful.

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answers from Jacksonville on

No, he can't. My daughter's father tried to do this one year and you are supposed to fill out a form that states the father can claim her on his taxes for the tax year and in the small print, it states that if the person claiming the child is behind 600 or more in child support, they can't claim the child. He was almost 1000 behind and wanted to claim her to get more $$ because he knew I was going to get his federal return for the back support! Also, which ever state the support order is filed in should be reporting the owed support to the IRS come October of every year which in turn will put his federal (and sometimes state) return to you instead of him. He also can't claim the child without a SS # either. Most of the time in a situation of divorce, the parents alternate claiming the children on taxes, so unless you are court ordered, you don't have to let him claim the children either.

Hope this helps. You can always call the IRS too and ask questions too. If I were you, I'd file taxes as you normally would, claiming the children and let nature take it's course. It may tie up your return if he files before you (this happened to a friend of mine, her ex filed before her and it was her year to claim the kids) but it should all work out in the end.

Good luck!

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answers from Orlando on

In 2009, a friend of ours had her baby's father claim their child on his taxes. He did not have custody of the child, nor did he provide more than 50% of the child's support. Just like in your situation, he had his papers before the mother, so he filed first. We simply assisted her in filing her return as normal. I will have to check with my husband, but he also sent additional documents verifying custody/support orders. Our friend received her return approximately 4 weeks after we filed her return for her and the bio father has had his returns taken from the IRS since then.

Additionally, if he has that much in arrears, he will be deducted from his tax return automatically by the IRS as they receive documents from CSE regarding past dues, etc.

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answers from Jacksonville on

I can only speak from what I know...I got divorced in TX and there is a section in the decree that specified after 2003, my ex is no longer allowed to claim our children on his taxes. He does pay his child support regularly - but that's something that was hashed out back then. Does your order say who can claim them?
My sister's ex decided to claim their kids after 13 years. He didn't even have the courtesy to tell her (he rarely paid child support and never saw them as he lived in another state). She didn't know this happened until the IRS flagged her that the kids had already been claimed. It took some legwork, but she submitted papers (from school and landlord notices) that she had the kids full time and was their sole support. She got her money (although, I don't know how long that too), he was billed by the IRS and warned about trying to commit fraud.
I doubt this is very helpful - but there are solutions out there...You just have to find them. Don't stress so much, it will all play out in your favor. Just hang in there and keep loving on those kids. Good luck and God Bless!



answers from Sacramento on

Well, to be able to claim them he'd have to have provided the MAJORITY of their support. I'm pretty sure, no matter how much he's' paying it isn't more than YOU spend on them. If he files before you, it might cause a headache, but you can still file... it just might stop you from being able to efile, which sucks :-/ because when they try to process it, the computer will see that someone else already claimed them.

If you don't normally use an accountant, this might be a good year to do it.

Anyway, I've had this happen and basically you can go ahead and claim them, even if he files first, and he will end up owning the IRS or he can file an amendment.

Good luck,

EDIT: There might actually be a line in your support order that explicitly says who will claim them for tax purposes. That fact is usually used in the support calculation because whoever claims them usually owes more/ gets less support because they have more spendable income.



answers from Miami on

I honestly do not believe he can legally claim her on his taxes UNLESS she lives with him for more than 6 months out of the year. How much he pays in support is irrelevant. Talk to YOUR accountant about this.


answers from Jacksonville on

1) Do your guardianship papers address the issue of claiming the children for tax purposes? That is where I would start.
2) His employer can be pursued by legal authorities if they are not deducting and sending in his support in compliance with the Income Deduction Order they received. (in other words, if they don't do it in a timely manner in conjunction with his payroll schedule). How was that provided to them? By the state? It should have been sent to them by certified mail return receipt requested, and have proof that they received it. If the payments are not in compliance, the COMPANY can be sued for contempt. Bear in mind, if he isn't earning enough to cover what he is supposed to pay, or if he is paid on an irregular schedule, the payments the company sends in will reflect that. And there is a percentage limit to how much they can withhold as well, I believe.
3) If the state is owed reimbursement for AFDC payments, that does get paid. It all depends upon if you are still currently receiving AFDC on behalf of the kids (currently ongoing) or it was in the past. If you are currently receiving it, then his current support goes towards the AFDC reimbursement, as the AFDC benefit for the kids is already coming to you. If it was in the past, then his arrearage payment goes towards reimbursing the AFDC arrears also, so probably a portion goes to each "injured" party (you and the State both).
4) Whatever happens, he claims them or you do, or whatever... any refund he qualifies for can be intercepted by the State for reimbursement of established arrearages.




answers from Oklahoma City on

In order to claim a child you suppose to support that child on the 80% of everything, that you'll probably do, even if he pays child support the entire year it doesn't mean he can claim her , the only one who can claim is the one who has custody ........but if he claim first he can get a refund and when you do the IRS will follow and you probably get your refund too (maybe not) until everything gets clear..I think the best you can do IRS tell them your situation and they will probably get an alert on your kids social so he won't be able to file...


answers from Dover on

What does the court papers say? Typically, if not spelled out it is whoever is the primary provider for the child(ren). If he files first and then you file, it will throw up a red flag and the IRS will follow-up. I recommend not filing electronically if he has already filed...yours may get held up a bit but in the end he SHOULD owe money back and you would be able to take the dependent deductions. The thing is, if he owes money they should take his tax return.

I recommend reminding him that although he pays child support, you are the permanant legal custody and therefore they are YOUR dependents (for insurance purposes they could also be his but not for taxes unless you agree).



answers from Seattle on

Ditto... call the IRS to make sure that any/all paperwork they need you have / to give them a head's up.


Work with an accountant this year.

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