Can I Claim My Child on Taxes if My Ex is Behind in Child Support?
By: M. Scott Gordon
After getting divorced when there are minor children from the marriage, both parents should understand who has the right to claim the child on income taxes. To be clear, both parents are not permitted to claim the child—the child cannot be claimed on two separate income tax returns. However, the question of who gets to claim the child in and of itself is a complicated one.
Even when the parents understand clearly who is able to claim the child, the tax situation can become more complex when the parent entitled to claim the child fails to make child support payments or to uphold his or her child support obligation. In such cases, the other parent often wants to know: can I claim my child on taxes if my ex is behind in child support? We will discuss the tax implications of child custody (“Allocation of Parental Responsibilities”) and divorce, and then we will say more about how one parent’s failure to pay child support may (or may not) impact taxes.
Claiming the Child on Your Income Taxes
First, before we discuss whether a parent can claim a child on his or her taxes when the other parent is behind on child support payments, it is important to understand who gets to claim the child in the first place. In effect, federal tax law has not quite caught up with changes to child custody laws like those in Illinois. In other words, federal tax law does not discuss the child-related tax benefits in terms of parental responsibilities and the income shares child support model, but rather in terms of “custodial”. With federal taxes, a parent may be entitled to claim child-related tax benefits if that parent provided the majority of the financial support or was the primary custodial parent.
With Illinois law on parental responsibilities and the income shares model for child support, both parents make contributions to the child financially, physically, and intellectually. As a result of shared parenting time and joint financial child support obligations, many parents alternate claiming the child for tax purposes each year. There are many different rules for different tax benefits regarding children, including:
Depending upon the living situation, which parent gets to claim those benefits listed above can be complicated. But what happens when Parent A, for example, is supposed to be able to claim child-related tax benefits but fails to make child support payments or contribute to his or her percentage of the child support obligation? Can the other parent—Parent B—decide to claim child-related tax benefits that year even though Parent A is supposed to be able to claim those benefits?
Parents Generally Cannot Claim Child-Related Tax Benefits in Response to Child Support Default
In general, Parent B in the hypothetical above cannot claim child-related tax benefits in Parent A’s year just because Parent A failed to uphold his or her child support obligations. There are other child support collections options and enforcement mechanisms that Parent B may be able to use to recover child support.
However, if the court agreed to include a provision in the divorce settlement requiring timely child support payments in order for each parent to be eligible for child-related tax benefits, then it may be possible for Parent B to claim those benefits in response to Parent A’s default. However, it is always important to speak with a family lawyer about your situation.
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