Can I Claim My Child on Taxes if My Ex is Behind in Child Support?
By: M. Scott Gordon
After getting divorced when there are minor children from the marriage, both parents should understand who has the right to claim the child on income taxes. To be clear, both parents are not permitted to claim the child—the child cannot be claimed on two separate income tax returns. However, the question of who gets to claim the child in and of itself is a complicated one.
Even when the parents understand clearly who is able to claim the child, the tax situation can become more complex when the parent entitled to claim the child fails to make child support payments or to uphold his or her child support obligation. In such cases, the other parent often wants to know: can I claim my child on taxes if my ex is behind in child support? We will discuss the tax implications of child custody (“Allocation of Parental Responsibilities”) and divorce, and then we will say more about how one parent’s failure to pay child support may (or may not) impact taxes.
First, before we discuss whether a parent can claim a child on his or her taxes when the other parent is behind on child support payments, it is important to understand who gets to claim the child in the first place. In effect, federal tax law has not quite caught up with changes to child custody laws like those in Illinois. In other words, federal tax law does not discuss the child-related tax benefits in terms of parental responsibilities and the income shares child support model, but rather in terms of “custodial”. With federal taxes, a parent may be entitled to claim child-related tax benefits if that parent provided the majority of the financial support or was the primary custodial parent.
With Illinois law on parental responsibilities and the income shares model for child support, both parents make contributions to the child financially, physically, and intellectually. As a result of shared parenting time and joint financial child support obligations, many parents alternate claiming the child for tax purposes each year. There are many different rules for different tax benefits regarding children, including:
Depending upon the living situation, which parent gets to claim those benefits listed above can be complicated. But what happens when Parent A, for example, is supposed to be able to claim child-related tax benefits but fails to make child support payments or contribute to his or her percentage of the child support obligation? Can the other parent—Parent B—decide to claim child-related tax benefits that year even though Parent A is supposed to be able to claim those benefits?
In general, Parent B in the hypothetical above cannot claim child-related tax benefits in Parent A’s year just because Parent A failed to uphold his or her child support obligations. There are other child support collections options and enforcement mechanisms that Parent B may be able to use to recover child support.
However, if the court agreed to include a provision in the divorce settlement requiring timely child support payments in order for each parent to be eligible for child-related tax benefits, then it may be possible for Parent B to claim those benefits in response to Parent A’s default. However, it is always important to speak with a family lawyer about your situation.
Child support arrearages, which refer to the unpaid obligations of child support, can have profound financial implications for parents involved in custody arrangements. These arrears do not merely represent a growing debt; they can significantly affect one’s federal and state income tax refunds. While child support payments are not categorized as taxable income nor are they deductible for the payer, falling behind on these obligations can initiate a series of enforcement actions intertwined with tax regulations.
Let’s break down the fundamental aspects of child support payments:
Tax Status for the Recipient – Child support payments received are not considered taxable income. This means that recipients do not report these payments as part of their earnings when filing their taxes.
Tax Status for the Payer – On the flip side, individuals who pay child support cannot deduct these payments from their taxable income, which can affect their tax liability. This distinction is crucial as it sets child support apart from alimony, which may have different tax implications based on the conditions of the divorce agreement. Thus, while child support arrearages do not directly alter your taxable income, they can have significant repercussions on your tax refund.
One of the most impactful consequences of failing to make timely child support payments is the potential interception of federal tax refunds through the Treasury Offset Program (TOP) This program allows for the U.S. Department of the Treasury to seize tax refunds for individuals who have overdue child support payments. Here are some key points to understand about this process: –
Applicability to Different Tax Returns – The offset mechanism affects both individual and joint tax returns. Consequently, if a parent has a tax obligation due to arrears, their refund may be intercepted regardless of whether they filed alone or with a partner.
Protecting Joint Filers – If you file a joint return with a spouse who does not owe child support, you can submit IRS Form 8379 (Injured Spouse Allocation) to safeguard your share of the refund, ensuring that it is not taken to cover your partner’s arrears.
It is essential to recognize that recent reforms have shed light on how arrearage enforcement disproportionately affects low-income noncustodial parents. In 2025, new IRS documentation rules and payment caps were implemented to alleviate financial burdens on those with limited income. These reforms include:
Modified Refund Offset Thresholds – Changes in the income levels that trigger refund offsets to provide relief to lower-income individuals.
Extended Hardship Exemptions – Increased access to exemptions for those facing significant financial hardships, helping to protect their essential funds.
Simplified Dispute Processes – Streamlined procedures for contesting incorrect arrearage balances, aiming to make it easier for parents to resolve disputes. Nevertheless, many low-income families still endure the stress of tax refund seizures, which can disrupt their ability to cover essential living expenses such as rent and utility bills, further complicating their financial situation.
Though child support arrearages don’t have to be reported as taxable income or deductions, both the IRS and state child support agencies require specific documentation to substantiate:
Payment History – Records detailing payment schedules and amounts. –
Custody Arrangements – Documentation of custody agreements which outline the support obligations.
Proof of Hardship or Dispute – Evidence to support claims of financial difficulty or disputes regarding payment amounts. Failure to maintain accurate records can result in processing delays for tax refunds or complications in resolving enforcement actions. Therefore, it is advisable for parents to keep meticulous documentation of all payments and communications with child support agencies.
If you find yourself in arrears for child support, consider these practical strategies to minimize potential tax-related disruptions:
1. Verify Your Arrearage Balance – Before filing your tax return, check your balance with your state’s child support enforcement office. This will help you understand your current obligation and avoid surprises.
2. File Early – Filing your taxes early may allow extra time to address any disputes or issues that arise concerning your refund.
3. Utilize IRS Form 8379 – If you are filing a joint return with a spouse who does not owe arrears, complete this form to protect your apportioned refund.
4. Seek Professional Help – Consult with a tax preparer or legal aid if your refund is essential for your financial well-being. They can guide you through the process and provide advice tailored to your situation. Additionally, certain states offer payment plans or forgiveness programs for individuals with longstanding arrears, which can help reduce the chances of having your refund withheld.
While child support arrearages may not directly change your taxable income, their repercussions on your tax refund can be substantial and far-reaching. Understanding the complex relationship between family law and tax enforcement is vital for both custodial and noncustodial parents. Staying informed, keeping comprehensive records, and seeking professional guidance can empower you to navigate tax season more effectively, ultimately reducing the potential for unwelcome surprises.
Do you have questions about child support and child-related tax benefits? Our compassionate Chicago child support attorneys can help with your case. Contact Gordon & Perlut, LLC at 312-360-0250 for more information.