Arrears and tax levy

[lratterman]

What is the name of your state? CO

My husband owes back child support because his judgement amount was 75% of his income and he can only afford to pay 60%. He has had a levy against his tax refunds to pay this off. His agreement with his ex-wife is for each of them to claim one child (they have 2) on tax returns, and she signed a tax form 8332 releasing her claim to the one son "for all future years". After filing our taxes this year, we found out that she had claimed both children. She now states that, since my husband owes back child support, that he has no right to claim the one son and has not had the right for years. She says that she is going to get us audited for this, even though she was fully aware that he was claiming him and supportive of it before now.

My question is this: His refund money has gone to her for 4 years for the arrears. If he is audited and it is determined that he (she) should not have gotten that money back, is she entitled to pay it back or is he? Thanks.

 

[critterperson]

What is the name of your state? CO

My husband owes back child support because his judgement amount was 75% of his income and he can only afford to pay 60%. He has had a levy against his tax refunds to pay this off. His agreement with his ex-wife is for each of them to claim one child (they have 2) on tax returns, and she signed a tax form 8332 releasing her claim to the one son "for all future years". After filing our taxes this year, we found out that she had claimed both children. She now states that, since my husband owes back child support, that he has no right to claim the one son and has not had the right for years. She says that she is going to get us audited for this, even though she was fully aware that he was claiming him and supportive of it before now.

My question is this: His refund money has gone to her for 4 years for the arrears. If he is audited and it is determined that he (she) should not have gotten that money back, is she entitled to pay it back or is he? Thanks.

I know in Illinois, if the NCP is in arrears they are not entitled to claim the child on taxes.......Because you have to prove that you supported the child...If he is not paying the full amount he isn't pulling his load........If he has been paying her his tax returns for the last 4 years and is still not caught up, good luck getting anyone to side with him........ She could have claimed the children for the last four years, and gotten all of the child support too... So if I were you I'd be blessed that she gave you four years........They were truly a gift!

In answer to your question.......I think in this scenero he would be forced to pay it back.........Sucks, but I would lay bets on this outcome........Sorry

 

[lratterman]

He made a total of $22,00 last year, and his total support obligation was $16,000, of which he paid $12,000. Tell me this isn't "pulling his load". AND she makes over $30,000/ year. The arrears continue to accrue because we cannot AFFORD to pay more, not because we don't want to. Not all fathers who owe arrears are deadbeat dads.

He had no clue that if he owed arrears he would not be able to claim his son, or else he would not have done it. His ex never brought this up until now.

 

[brisgirl825]

Have you tried to get a modification? You seem offended that ppl would think that your husband is a dead beat. However the same holds true for CPs, they're not all greedy. Despite what you might think, she can't just go to court and ask for whatever amount she wants, it's based on incomes, percentages, and things like daycare and insurance. So if the court ordered that amount, it was for a reason. If something changed after that order, it's your husband's responsibility to go to court and fix it.

Sarah

 

[Phnx02]

He made a total of $22,00 last year, and his total support obligation was $16,000, of which he paid $12,000. Tell me this isn't "pulling his load". AND she makes over $30,000/ year. The arrears continue to accrue because we cannot AFFORD to pay more, not because we don't want to. Not all fathers who owe arrears are deadbeat dads.

He had no clue that if he owed arrears he would not be able to claim his son, or else he would not have done it. His ex never brought this up until now.

But apparently he didn't "pull his load" for some time before this. Otherwise he wouldn't owe arrears in the first place. What is accruing on the arrears is interst. He will need to find a way to pay this off or it will bite you in the butt for many more years to come.

 

[lratterman]

There is no interest accruing on the arrears, only the arrears themselves. He tried to get it modified, and they did not take into account his expenses or salary at all - they raised his support amount by $200 to "pay off" the back child support. He has paid as much as he could every single month, and of course can never catch up if the support is so out of line with what he makes.

You try making ends meet on $10,000/year as an adult when your 2 small children supposedly cost $30,000/year (what she claims). See if you like it when people call you a deadbeat.

 

[brisgirl825]

There is no interest accruing on the arrears, only the arrears themselves. He tried to get it modified, and they did not take into account his expenses or salary at all - they raised his support amount by $200 to "pay off" the back child support. He has paid as much as he could every single month, and of course can never catch up if the support is so out of line with what he makes.

You try making ends meet on $10,000/year as an adult when your 2 small children supposedly cost $30,000/year (what she claims). See if you like it when people call you a deadbeat.

Acutally, I do know what it's like b/c I was dealing with a dead beat ex. I had two children and making $800 a month, which is less than $10,000 per yr. I had to save every penny and had no extras. I had no car and walked my kids to daycare and walked to work. I lived in a small apartment and didn't have a lot of food. The kids had hand-me-down clothes. I also stayed abstinent so that I didn't risk having anymore children than I could take care of. It may not have been the Ritz lifestyle but I did it, and all by myself.

And she doesn't get to tell a judge how much she thinks it costs to raise kids, that's what guidelines are for. It's not her fault that he got behind and then the judge tacked on extra to pay the arrears. You should've filed for a modification before you started getting behind. If your income really went down that much then you had every right to get it lowered. And try getting another job that tends to help bring in money.

I also have the right to claim both my kids b/c my ex is in arrears. And until he's caught up, in 8 yrs, I get to do so per my court order.

Sarah

 

[lratterman]

Is there anyone that can actually answer my QUESTION with any facts without judging my husband for not making enough money?

 

[Whyte Noise]

If the court order doesn't mention any conditions (such as being current on CS) to be able to take the deductions, then he's within his legal right to take it and he will owe nothing. If it says he has to be current on support to be able to get the deduction, then he was not within his right to take them and he could be made to pay that back if audited.

If he is able to claim the deduction without any conditions and mom claimed them this year, then SHE could be made to pay back the portion she got frauduently if she happened to be audited.

 

[LdiJ]

Is there anyone that can actually answer my QUESTION with any facts without judging my husband for not making enough money?

Yes, I can answer your question. However there are two different answers. One as far as the IRS is concerned....and another as far as the state court is concerned.

She signed the form 8332 for "all future years". That is the only thing that the IRS will honor...IF and only if your husband also claims the child and challenges her right to the exemption. There is case law from the tax court that backs that up.

She is correct that NORMALLY if someone is in arrears they are not entitled to the tax exemption for the children. That is based on state law. Its very likely that if it came before the state court judge the judge would order him NOT to take the exemption until his arrearages are paid in full...and perhaps would even require him to amend his tax returns for prior years so that mom could amend hers and take the exemption....which indeed, would make him owe money to the IRS.

Now...those orders wouldn't be legal because the judge doesn't have the authority to do that....however the judge does have the authority to punish him for not following the judge's orders or for ordering him to reimburse mom anyway. However that isn't all that likely to happen...its more likely that the judge would just order him not to take the exemption in the future until the arrearages were paid off.

My advice? He shouldn't take the exemption as long as he has arrearages. Mom won't be able to get him audited for the last 4 years since she signed the form 8332.

I just finished a major research case on this particular topic.

 

[lratterman]

Thanks for the advice.

LdiJ- Can you reference any of the case law that would support our case? I would love to read it over if it is accessible.