What to do if I have a child support agreement that states my child’s father can claim her on his taxes, however he is always late with his payments?

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What to do if I have a child support agreement that states my child’s father can claim her on his taxes, however he is always late with his payments?

I have a child support agreement through the courts and it states my child’s father can claim her on his taxes for last year if he pays his child support and on time. He is always late and some weeks he pays nothing at all. He is behind right now and he still is trying to claim her. I want to know if I have to go back to court to make it to where he cannot claim her since he hasn’t been keeping up with the agreement or if I can just claim her and not have to go through court again?

Asked on January 5, 2012 under Family Law, Arizona

Answers:

S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You do not have to go to court again. This is an issue between the two of you and the IRs. The IRS Code states that the custodial parent is entitled to claim children unless there are extenuating circumstances. One of them is a court order or in the even that the amount of support paid is exorbinate. THe burden of proving this lies to the non-custodial parent. THus if you file for the exemption and he files as well, the IRS will grant you the exemption unless he can give them sufficient proof that he is entitled. However, the IRS may after seeing the order not want to get involved in the technicality of him being on time and may give it to him anyway. if this is the case, then you need to go to court and get arrears established to show the IRS. The real key in this thing is filing your taxes quicker than him. If you file first you will automatically gett he deduction and he would have the burden of proving he is entitled. If he files first, then you may have to go to court to prove that he is late.


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