Legal Question in Family Law in Minnesota

Re: dependency exemption

Thank you for your question.

The answer is that yes, you can recover the dependency exemption if he fails to pay child support.

In general, when I draft a stipulation (that is, a judgment and decree), I always include a specific provision that states the dependency exemption can only be taken by the non-custodial parent if he is current in his child support obligation as of the last day of the year for which the exemption will be taken. Thus, if he is not current as of December 31 of 2006, for example, he would not be entitled to the exemption.

You have several options. First, you could simply go ahead and file your returns, taking all children, and simultaneously provide him with notice you are doing so, and at the same time file a motion to modify this provision of your support order.

Second, you could bring a motion first, but you would not likely be able to get the matter heard before April 15, and in any event, he will likely file a return immediately upon receiving a motion -- hoping to foreclose the issue for this year.

Whether you would be well advised to have an attorney help with this process depends on the amount of his arrears and whether he is inherently litigious.

Again, thank you for your question. Please feel free to contact me if you have further questions or concerns about this matter.

Re: dependency exemption

I should add that the law presumes the conveyance of a dependency exemption should be contingent upon being current in support. In other words, should you choose to bring the matter to court, your request would not be contrary to law, but on the contary, consistent with the general practice. The real issue is why this was not spelled out in your decree in the first place.