Child support abatement

[cwmayhem]

What is the name of your state (only U.S. law)? IL
My ex has not had a real job in over 2 years. He collected unemployment and union benefits for 2 years. He also worked side jobs as an electrician numerous times for which he did not inform the court.
Now he states that he is going to school (actually has been for 1 1/2 years, but did not tell me or the courts), so he could not look really be looking for work. I have the kids 28 days out of every month, his choice.
So in Nov. when unemployment ended, he requested abatement. However, since that time, nothing has been orderedabated yet and he has voluntarily not paid anything at all. We have, through discovery, found that he regularly has large deposits into his checking account, but refuses to say what the deposits are from.
I have asked my attorney to file for me to get the tax exemption,which he has not done yet and have not yet signed the 8332 form yet this year.
I believe they filed a spindle date to get me to sign, which if he was supporting the kids, I would. He stopped paying court-ordered 1/2 of daycare, school, medical,etc. in July of 2009. We are also in court trying to get that updated and the arrears paid.
What are the chances I will get to claim both kids this year if I take the fact that he is not supporting them at all anymore, and in fact was behind at the end of the year? (we each claim one of 2).

 

[muchneededhelp]

What is the name of your state (only U.S. law)What are the chances I will get to claim both kids this year if I take the fact that he is not supporting them at all anymore, and in fact was behind at the end of the year? (we each claim one of 2).

From what I understand (and correct me if I'm wrong senior commentors!) is that whomever has the children for over 6 months out of the year gets to claim the children. Even if the court order says you each get to claim one, the IRS doesn't honor that because the IRS rules state differently. If you had the children in your custody for over 1/2 the year, which it sounds like you have, then you should be able to claim both. Just make sure you have the documentation to back it up in case of an audit.

 

[cwmayhem]

Could the court force me to amend my taxes because it does state in our decree that we are supposed to split the kidseven though he is not supporting? I just don't want to get into a contempt situation...

 

[mistoffolees]

From what I understand (and correct me if I'm wrong senior commentors!) is that whomever has the children for over 6 months out of the year gets to claim the children. Even if the court order says you each get to claim one, the IRS doesn't honor that because the IRS rules state differently. If you had the children in your custody for over 1/2 the year, which it sounds like you have, then you should be able to claim both. Just make sure you have the documentation to back it up in case of an audit.

That is only partially correct. You have to distinguish between IRS rules and court orders.

As for the IRS, you are correct. Whoever has the child > 50% of the time gets the deduction. (There are some exceptions for older court orders, but the IRS has ignored court order for some years). If they both have exactly 50%, it goes to the one with higher AGI.

HOWEVER, if the court order says that they each get one and OP takes both, there could be a problem. While the IRS won't come after her, ex could also claim the deduction. When the IRS investigates, they will award her the deduction per their procedures, but he can drag her back into court for contempt - and probably win. She'd have to reimburse him for the extra taxes he's paid, penalties, interest, and fines.

As always, one should follow the court order to the letter. If the court order says that he gets the deduction for one or more children, she should sign the appropriate 8332 form and then not claim that child.

Meanwhile, she COULD go back to court and ask for a modification in the decree to give her the deduction every year.

 

[LdiJ]

Could the court force me to amend my taxes because it does state in our decree that we are supposed to split the kidseven though he is not supporting? I just don't want to get into a contempt situation...

I could see it going either way. I think that there is a pretty decent chance that a judge would rule in your favor, since dad is so far behind. However, its not a slam dunk either.

 

[mistoffolees]

I could see it going either way. I think that there is a pretty decent chance that a judge would rule in your favor, since dad is so far behind. However, its not a slam dunk either.

It could go either way, BUT OP is asking for the court to make a RETROACTIVE order changing the order. That just doesn't happen much. Any change in who gets the tax deduction is likely to apply for only FUTURE years, not past ones. So OP needs to go back and change her taxes to be in compliance with the court order.

 

[cwmayhem]

Thank you. I have not filed taxes yet. I will be trying to change prior to filing.
Also, will he be considered in contempt as the abatement has not been ruled on, yet he has not tried to make any payment towards child support since Nov.?