With Christmas over and New Year’s Eve quickly approaching, noncustodial parents who pay child support are probably not thinking about whether they are eligible to claim the dependency tax exemption.  But they should.

First, Look to your Divorce Decree or Paternity Order

Since 2011, Indiana law has required that the Court specify in a child support order which parent is entitled to claim the child or children for dependency tax exemption purposes.  The court considers a number of factors in fashioning this order.  Most importantly, the court is required to enter an order stating that the parent may only claim the child as a dependent for federal and state tax purposes if the parent has paid at least 95% of the parent’s child support for the calendar year for which the parent is ordered to claim the child as a dependent by January 31st of the following year.  What does that really mean?   If you are less than 95% current on your 2015 child support by January 31, 2016, you cannot claim your child for tax exemption purposes.

If your divorce decree or paternity order was issues prior to 2011, then you should again look to your decree.  The law above may not have been effective yet but most divorce decree and some paternity orders issued prior to 2011 address the dependency tax exemption.  Those decrees and orders that address this issue usually include similar requirements for the child support payor being current or almost current on his or her support.  In my experience, the order may have the 95% current requirement or no more than 4 weeks behind.

 What if your decree or order is silent?

You should contact a family law attorney and review your decree or order with them.  The family law attorney can advise you as to whether you should modify your the decree or order.

What if the child support payor wrongfully claimed the dependency tax exemption for the child?

This is the most common issue that clients experience.  It shows up in two different situations usually either (1) the child support payor is suppose to claim the child but is behind in his or her support or it is not the child support payor’s year to claim the child but he or she claims the child anyway.  Depending on the situation and other circumstances, it might be appropriate to file an Information for Contempt and seek appropriate relief to correct the situation.

If you have questions regarding this or another family law issue, you may contact Attorney Katherine N. Worman at (812) 463-2056 or on our website.