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MommyJ2

Can we claim our son on our taxes????

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My husbands ex lives in Colorado and has ALWAYS claimed their son on her taxes. child support has been taken out of my husbands checks all year and she still wont let us claim him. There was never a custody ruling, they've done everything out of court (now I see why, bc she has all the power since she's his mother). Are we legally authorized to claim him?

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As an initial matter, it's not clear from your post whether your husband was ever married to the mother of his child. If they were never married, was paternity ever established in any way? You said there "was never a custody filing" and that "they've done everything out of court." If that's the case, then it is very likely that, in the eyes of the law, your husband is a legal stranger to the child. On the other hand, you said that child support is deducted from your husband's paychecks. Unless that's a voluntary deduction requested by your husband, the only way that could happen is if there is a court order that obligates him to pay child support. If there is a child support order, then there must have been a determination of paternity as well as a custody order (at least an implicit custody ruling).

As far as claiming the child as a dependent, those rules are determined by IRS regulations and, with one exception, having nothing to do with what the mother allows or doesn't allow. As a very general matter, in a situation such as this, the parent entitled to claim the child is the parent with whom the child lives for the majority of the year, and payment of child support has nothing to do with it. If, in fact, there is a court order that requires your husband to pay child support, then I have to assume that the child lives with the mother (or at least lives with her for the majority of the time). If that's the case, then she is entitled to the dependent claim. She could, if she wanted, allow your husband to claim the child (either for a particular year, multiple years, or all future years) by executing IRS form 8332. But it is entirely up to her whether she does that. Your husband could seek an order from the court putting a more specific custody ruling into place and could request that the court order the mother to give up the dependent claim to your husband. We have no ability from here to speculate intelligently about whether a court would do that, and your husband should consult with a local family law attorney.

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