Ex-Husband and Taxes
May 17, 2016 9:57 AM   Subscribe

You are not my lawyer. But I want to know if this is possible, and should I find a lawyer? It involves a divorce and taxes in New Jersey.

I divorced my terrible ex husband in 2013. We have joint custody. I have residential custody. Child support is paid through garnishment through probation which was put in place before the divorce because I fled to a domestic violence shelter with nothing and welfare required child support be put in place. At the divorce, this was upheld and child care, a specific debt, and medical expenses for our child were added under a court order separate from the child support and not garnished.

He hates paying the non-garnished wages. Claims he shouldn't have to pay the debt because he had to purchase clothes for me while we were married and he provided me with a phone that he paid the bill on. He's $700 some in the hole on that side.

Stay with me, I swear I'm getting to the point.

When I reminded him of his debt, we argued and he ended by saying he was going to take me to court to force the issue that he can file as our son being his dependent every other year because he wants a tax return on his child support.

Is he allowed to do this?

He sees his child 4 days a month, firm (a weekend every other week). Eight days if he shows up his one day a week, which is seldom. More like he sees our son 6 days a month. Then a week during summer when he takes him to Disney with his current girlfriend.

It just boggles me this would be allowed in New Jersey. Is it?
posted by 80 Cats in a Dog Suit to Law & Government (12 answers total) 1 user marked this as a favorite
 
Non-custodial parents
There is one exception to the residence requirement that allows the non-custodial parent to claim their child as a dependent. The non-custodial parent can take the exemption if the custodial parent agrees not to on their own tax return. However, you must obtain a signed IRS Form 8332 or similar written document from the custodial parent allowing you to do so. Parents who have joint custody may also use this form to alternate the tax years in which each can claim the exemption.
posted by roomthreeseventeen at 10:03 AM on May 17, 2016


Can a judge force me to allow it?
posted by 80 Cats in a Dog Suit at 10:07 AM on May 17, 2016


You're providing the vast, vast majority of your son's support, and a local family court judge is unlikely to buck federal law (the part where you have to agree to it) just because your ex wants it.

But get a lawyer. Tell your ex to talk to that lawyer. It'll cost you, but it will be worth it.
posted by Etrigan at 10:14 AM on May 17, 2016 [4 favorites]


A judge can force you to do practically anything. But they aren't likely to. particularly not when he's already in breach of the previous judgement.

If he ever does take you to court (and that's a big if, he's likely too stingy to spend the money), get a lawyer who can give you specific advice on what your local judges generally do and don't order in child support cases. In the meantime I would just treat it as him having a tantrum and ignore it.
posted by tinkletown at 10:21 AM on May 17, 2016 [5 favorites]


I went through something similar to this in a different state. The ex claimed the kid even though ... legally they couldn't, as if there had been an agreement which there was not. There was some letter from the IRS "Hey what is up with this?" and my SO replied "It's bullshit." and it worked out just fine. I would

- stand your ground
- not engage the ex (seconding the "this is a tantrum" approach)
- pay a lawyer for the one phone call this should take to get resolved

So, people can try to take you to court for any reason in the US but judges can usually see reason and they've seen this sort of acting-out before from bullshit exes with rage issues. I am sorry you are dealing with this.
posted by jessamyn at 10:24 AM on May 17, 2016 [5 favorites]


You can get a lawyer or represent yourself in court. I seriously doubt your husband will expend the effort to do this or any additional money on a lawyer.

So many people become expert in Family Law because of this kind of nonsense. If having a lawyer makes you feel better, see if a free one is available from legal aid or some other place in your jurisdiction.

My response, "Go right ahead, take me to court, I'm sure the judge will be impressed with your argument."

Frankly, I'd go to court for the arrears because he doesn't owe it to YOU, he owes it to his son. Also, if there are court ordered child support monies owed, frequently they're deducted from income tax refunds, so bonus!

Your divorce degree and child support order should specify who gets the deduction for your son, so review that and if it doesn't, get it into the record with the judge. Also, at the time, petition to see if the non-garnished monies can BE garnished, because your Ex ain't exactly a prince about this stuff.

Don't be so fearful! Look at all the amazing stuff you've done so far! He's bullied you long enough. Call his bluff.
posted by Ruthless Bunny at 10:26 AM on May 17, 2016 [4 favorites]


This: Frankly, I'd go to court for the arrears because he doesn't owe it to YOU, he owes it to his son. Also, if there are court ordered child support monies owed, frequently they're deducted from income tax refunds, so bonus!

Your divorce degree and child support order should specify who gets the deduction for your son, so review that and if it doesn't, get it into the record with the judge. Also, at the time, petition to see if the non-garnished monies can BE garnished, because your Ex ain't exactly a prince about this stuff.
posted by Capri at 10:52 AM on May 17, 2016 [2 favorites]


Let me be clearer. Your ex is violating a court order to pay you money. He may be aware that he could be found in contempt of court and have more of his pay garnished, and therefore want to avoid going to court. His tactic, therefore, is to give you a reason to fear going to court (he'll get the tax exemption for your child), so you won't take him there. He may be hoping that you'll fear this enough that you'll let him get away with not paying the money the court has already ordered him to pay.

Regarding the tax deductions, unless you sign the IRS Form 8332, you have the right to claim your child as a dependent, and your ex does not. Generally, in a case of significantly asymmetrical custody (such as you have) one parent will sign this only if the non-custodial parent has a significantly higher income and therefore gets a higher tax savings by claiming the child, and the agreement will reflect that: the custodial parent will get a share of that tax savings in child support or some other form. Signing that form is almost never an outright gift. The court could order this if the judge felt that it was fair considering everything else in the agreement. You could likely argue that this was never in the initial arrangement, so shouldn't be changed now. You could also show that by skipping visitation, your ex has increased your costs/decreased your opportunities.

On a related note, don't speak with him in person about any of this. Use email or text so that you can demonstrate to a judge what the conversations are like. If both of you are conscious that your conversations could be monitored, you're both likely to behave better. You can remind him of that if he gets surly by email.

Ruthless Bunny is right: He's bullied you long enough. Call his bluff.
posted by Capri at 11:31 AM on May 17, 2016 [4 favorites]


Go to the library or a book store. Get a book on the subject of child support. See if you can get free legal aid. This sounds like bullshit and like going to court would be in your interest, not his.
posted by Michele in California at 11:37 AM on May 17, 2016 [1 favorite]


Take the deduction. Don't discuss this with him. If he calls or tries to talk to you, politely let him know you are unavailable. Tell him from here on out you are limiting contact to email and text and keep your own tone professional and businesslike in those. Also keep a hard copy of those exchanges.

I'd certainly get an attorney and take him to court to pay the past due amounts if that is cost effective for you. A judge could order that he get the deduction, but it seems very unlikely, given federal law, your awful ex's arrears, and the reality that he isn't really providing much at all for your child. (Also, if you have an income, it is probably not a good argument for your ex that he will benefit more from the deduction.)

I am so sorry about this. I think it wouldn't hurt to check in with a DV agency in your area for advocacy, someone to talk to, and safety planning.
posted by bearwife at 11:38 AM on May 17, 2016 [1 favorite]


Hoo boy - this sounds just like my ex! He and I were alternating the years we could claim our child as a dependent. I grudgingly allowed him to claim the deduction even when he stopped paying required child support. But when I finally read the judge's order in detail I realized it included and exception for the IRS deduction: the non-custodial parent had to be fully in compliance with the child support order. He wasn't, which meant he was not legally entitled to claim the deduction.

Please check with your state's child support enforcement office. If your child custody/support agreement doesn't specify the requirement for your ex to be fully up to date with child support in order to claim the deduction, they may be able to modify the order to include that language. Even if it's not stated explicitly in the child support agreement, it may be NJ law. Again, the office of child support enforcement should be able to help you with this.

Also, check with the IRS. Whether or not your ex claims your child as a dependent, if he is in arrears for child support, they will intercept his tax refund and issue it to you. The government is on your side on this matter!
posted by kbar1 at 12:01 PM on May 17, 2016 [2 favorites]


You should get NJ-based legal advice from a family lawyer. You should understand your rights and your options for enforcement (for example, in NYC, a parent can choose at any time to have child support collected through the support enforcement office, which would essentially make it all garnished). Generally, there is very little point to arguing outside of court, and negotiating only makes sense if you really know your rights.
posted by Salamandrous at 1:44 PM on May 17, 2016 [2 favorites]


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