I recently have had problems with my ex wife concerning the custody of our 2-year-old son. She says the reason she does not let me take him is that I did not pay my child support in 2009. In the divorce decree, it states that I get to claim him on my taxes. For 2009, she claimed him on her taxes so I could not. The amount that I would have gotten is more than the child support order. The amount she got for him was a little bit less than the child support order. I did not pay child support because of this issue.
What would the courts view on this be? Can I file criminal charges because she claimed him when the decree says I get to claim him? How would I go about this?
You need to contact a domestic litigation attorney licensed in your state immediately as child support laws vary from state to state. Although you may see the situation as “even” considering she took the tax dependency, you need to get the Court to see it that way as well.
The IRS has specific codes which determine who can claim a child. In addition to deductions and credits, if the parties are not married, the parent with more than 50% of placement may be able to file as head of household (other criteria apply). The parties can agree or the Court can Order the parties to alternate the benefits by year or award all tax benefits to one party. Only one person can claim the child in a given year. When two people claim the same child, the IRS will audit both tax returns.
I do not know the criminal statutes in Utah; however, if your decree says that you are the one who gets to claim your son on your taxes, she violated a Court Order. When a party intentionally violates a Court Order, he or she can be held in contempt of court. During a contempt hearing, the Court could order a fine or a jail sentence which could be purged so long as your ex-wife corrected the wrong; this could include reimbursing you for the value of the tax dependency or the Court could adjust your arrears accordingly. If she continues to violate the Order, the court ordered punishment would be imposed. Depending on the laws in Utah, you may also be able to recover costs and attorneys fees for having to bring the action.
You should be sure to review the divorce decree very carefully and consult an attorney regarding this issue as she may not have violated the Court Order. Many states have laws and many decrees have a provision that allows the other parent to claim the tax exemption if the other parent is in arrears on child support. You should also talk to your attorney about obtaining a provision which requires your ex-wife to sign IRS Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents for the child for each and every year going forward.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.