My ex has no contact with our children in over 18 months and is over $40,000 behind in child support. In our divorce decree it states he can claim every other year, and this would be his year. It seems terribly unfair and according to the IRS forms since they don't even stay with him and he provides NO financial or other support, it looks "illegal" for him to claim them! What if doesn't even file? As he has had 3 jobs in the last year, and only worked at each for about 3 months, with long breaks of "no work" (at least "reported"). So if I allow him to claim them and he doesn't file, then neither of get the money. I REALLY need the money. Short of going to court, as I really can't take the time and money for that, what can I do??

Let me start by saying that I am neither an attorney nor a CPA. One of my divorce decrees states that each parent is permitted to claim the child in alternating years. I am the one who pays child support in this case, and I do pay on time and I do claim my child when I am supposed to. In the other case, the child support order clearly states that the father can claim our child in alternating years, but ONLY if the child support obligation is met. He was $30,000 in arrears when the order was entered. You might consider filing for a clarification of your decree. I think most judges would be willing to add language stating the same.

That said, the IRS and the courts do not operate under the same laws. According to the IRS (per my CPA) the parent who has the most physical custody is entitled to claim the child, period. That is not to say that the other parent cannot take you to court and complain and you be held accountable.

Personally, I would take my chances if the other parent were that far in arrears and I had been providing all of the support for my child. However, I would also seek to have this language added to the court order, to make it legally binding, so the situation did not arise again. According to my CPA, the IRS doesn't give a rat's behind what the court orders say, only the IRS qualifying child requirements. If the father put up a fight, I would have no problem going before a judge and arguing my side of this situation, however, you have to decide how comfortable you are doing that, if he wants to fight you for it.

If he doesn't file, then no one gets the exemption.

This is NOT legal advice.

Can they yes, do you need to go back to court and get that changed, yes. The divorce courts have in many ways over stepped their boundaries by giving orders that allow a parent who does not give more than 50 percent of the support. Really no non custodial parent does. The issue of being behind in support does not apply.

You should check with the person who does your taxes, as to their opinion of it. It will not be a issue with the IRS , if you claim them, but it would make you in violation of your custody agreement (divorce agreement)

The CPAs who says the IRS does not follow divorce decrees are NOT up-to-date on their facts. The IRS USED TO have that attitude, until they were told by multiple federal court judges that divorce decrees are LEGAL contractual documents which MUST be followed if the decree does not violate tax law.

So the IRS will abide by a divorce decree that says the parents will alternate as to who claims the children.

That said, going back to the judge and getting the divorce decree modified make eminent sense, but I would not claim the children in the off years until that modification is made.