Application of Tax Laws Regarding Child Support
Can a court choose to apply C.R.S. 14-10-115 regarding child support payments and not award the tax exemption pursuant to 14-10-115 (14.5)? We are being told by the court that even though it was granted in the first support order but not specifically mentioned in the permanent order that came 2 months later that he is not entitled to it. My husband has paid 70% (according the Social Services Financial Worksheet) of the minor child’s support for the past 8 years and has never been late or delinquent. He has not been allowed by the custodial parent to claim him on taxes in any of the past 8 years by her own admission in court when this was presented during the most recent child support hearing. Can this be correct? Also, my husband has always paid his child support during the time when the minor child is with us for 2 1/2 months, or longer in some years during the summer. The court says that this is correct and is calculated into his total support payments. I have spoken with a number of other non-custodial parents and this doesn’t seem to be the case with them even though they aren’t paying 70% of the child’s support. I believe this court has overstepped their authority and is not interpreting or applying Colorado law in these two instances. Please help, we are very frustrated and need to know if we have any further recourse with this court.
The Colorado court MUST order that your husband is entitled to the tax dependency exemption. By Colorado statute, he and the mother would split the exemption in proportion to their repective contributions to the support of their child. Your husband could take the exemption as awarded provided that he is current in child support at the end of those specific years.
However, the ex-wife would need to fill out an IRS form consenting to your husband taking the tax dependency exemption. Otherwise, by federal tax law, the custodial parent presumptively takes the deduction.