My sons father is taking me to court concerning visitation and child support, and his lawyer is saying that he can get the tax exemption every year. My son lives with me, and will only visit his dad every other weekend. I read up on the tax laws, and it states that in order to claim a dependent, he/she must be a "qualifying" child and pass four tests, including residency. Seems as though I would get the exemption. It also states that for tie-breaking purposes, residency would be the first qualifier, and then who would benefit most from the exemption, which is the person who makes more money. That would be the father. My lawyer says either he will get it all the time, or we can try to get it every other year. From what I read, it seems like I should be getting it every year. Who's right?
Under Ohio Revised Code Section 3119.82 when a court addresses child support it must also determine whether the non-custodil parent may claim the minor child as a dependant. That statute provides the following:
" 3119.82. Designation of parent entitled to claim federal income tax deduction"
" Whenever a court issues, or whenever it modifies, reviews, or otherwise reconsiders a court child support order, it shall designate which parent may claim the children who are the subject of the court child support order as dependents for federal income tax purposes as set forth in section 151 of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended. If the parties agree on which parent should claim the children as dependents, the court shall designate that parent as the parent who may claim the children. If the parties do not agree, the court, in its order, may permit the parent who is not the residential parent and legal custodian to claim the children as dependents for federal income tax purposes only if the court determines that this furthers the best interest of the children and, with respect to orders the court modifies, reviews, or reconsiders, the payments for child support are substantially current as ordered by the court for the year in which the children will be claimed as dependents. In cases in which the parties do not agree which parent may claim the children as dependents, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.
" If the court determines that the parent who is not the residential parent and legal custodian may claim the children as dependents for federal income tax purposes, it shall order the residential parent to take whatever action is necessary pursuant to section 152 of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended, to enable the parent who is not the residential parent and legal custodian to claim the children as dependents for federal income tax purposes in accordance with the order of the court. Any willful failure of the residential parent to comply with the order of the court is contempt of court."
You should confer with your attorney and discuss the factorss under this statute that may be used to persuade the Judge to exercise his discretion in your favor. Keep in mind that the person tht pays child support must pay the federal, state and loal income taxes on that money plus they must pay the employment taxes on it (ie, FICA and MED-C).
Good Luck and hope my reply was helpful.
