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Ellen, Lawyer
Category: Family Law
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Experience:  25 years of experience helping people like you.
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My ex-wife is claiming that I must use my total taxable amount

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My ex-wife is claiming that I must use my total taxable amount from my Form 1040 as the bases for child support in 2013. In 2012 my actual earned income was $100,057. I withdrew $13,750 from my 401K to help pay for my daughter’s college tuition and room and board expenses and this was taxed at my current tax rate.

The question is, is my wife entitled to ask that the 401K amount withdrawn be included in the base for determining my 2013 child support obligation? I do not consider this income as it was money already earned in past years.

A breakdown of my taxable amounts for 2012 is listed below.

Thank you for your help.

Pliny Smith [email protected]

Wages, salaries, tips, etc.: $ 96,634
Taxable interest: $ 51
Ordinary dividends: $ 418
Taxable refunds, credits, etc.: $ 2,587
Capital gains: $ 367

2012 Income: $100,057

401K Educational Withdrawal: $ 13,750

Total 2012 taxable amount: $113,807
*This chat is not intended as legal advice. It is general information that may or may not apply to your situation and should not be relied upon.*


Thank you for your question. My name is XXXXX XXXXX I will do whatever I can to answer your questions!

Do you happen to have your child support order? If so, please type the provisions here. If not, please tell me whether your support order is based upon a percentage of your income or was set at a specific amount in your last court order

Customer: replied 3 years ago.

I do not have a child support order. My child support amount is based on the State of Minnesota Child Support Guidelines Worksheet. My ex-wife and I have recalculated the amount ourselves each year based on both tax returns and there has never been issue. Two years ago I also had a 401K withdrawl to use as a downpaymnet on my house and she never made it an issue and not she is. My goal is to provide a backup source that confirms that the one time 401K withdrawl is not to be considered in the base calculation for child support. Please let me know if you have additional questions.



Thank you very much for your response Nelson.

Minnesota Statute 518A.29 states that gross income includes "any form of periodic payment to an individual". It further states that when computing gross income "no deductions shall be allowed for contributions to pensions, 401-K, IRA, or other retirement benefits."

In plain English this means that a one-time withdrawal from 401(k) is not considered gross income for purposes of child support - It is not a periodic payment. If you had retired and were taking periodic withdrawals from the 401(k), it would be considered as part of your gross income as the withdrawal would then be considered a periodic payment.

As an aside, this also means that when you are making contributions to your 401(k), you must calculate child support based upon your income prior to the deduction for the 401(k).

You may read the statute in full at this link:

I would be glad to respond to any follow-up questions that you may have.

Ellen and 2 other Family Law Specialists are ready to help you