Legal Question in Family Law in Texas
Tax Dependant issue
My husband's ex has custody of their 2 children for the past 2+yrs. We pay $ 1500.00 per month child support. His ex is again divorced and makes $1000.00 per month and has two other children. According to the divorce decree, they each claim one of the children as a dependant. However, last year she claimed both of the children. We did not claim either as we were unable to verify if we should. We feel we provide all their support and should be able to claim both of them. Please advise as to who has the right to claim and what to do about last years filing. Thanks so much.
1 Answer from Attorneys
Re: Tax Dependant issue
Tax issues should be discussed with a tax professional. Normally, a Texas Court is powerless to award the deduction to one party or the other as this is dictated by Federal Law, not state law. If it is in the decree that your spouse is to claim one, I am not sure why you didn't do so. As I understand the exemption law, to claim a child (without a court order or agreement with the other parent), you must meet both the requirement that the child resided with you for over half the year and the second requirement that you provided over half of the child's support. While your current husband might meet the second condition, he could never meet the first condition, possession. Remember that child support in Texas is based upon the resources of the non-primary parent (Obligor), not on the income or resources of the receiving parent(Obligee). You should see a tax professional about filing an amended return for tax year 2000 and claiming the deduction. Call me if you want to discuss modifying the child support obligation, or seeking custody of the children.
Darren Schraeder
(972) 481-7990
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