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RD
RD, Certified Public Accountant (CPA)
Category: Tax
Satisfied Customers: 8784
Experience:  CPA, MBA, Over 10 yrs of experience in tax planning and business consulting..
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My husband cashed in a 401k early in 2008 because he was unemployed

Resolved Question:

My husband cashed in a 401k early in 2008 because he was unemployed and used it to support the family. We were separated in February 2008, but not legally divorced until 2009. He wants me to claim $12,000 as child support on my income tax. Is this possible, legal, fair?
Submitted: 7 years ago.
Category: Tax
Expert:  RD replied 7 years ago.
Child support is not deductible to the payer and taxable to the receiver. Hence the question of claiming child support does not exist.

Since you are not legally divorced until 2009- you cannot claim this as Alimony too.

Amounts paid under divorce or separate maintenance decrees or written separation agreements entered into between you and your spouse or former spouse will be considered alimony for Federal tax purposes if:

  1. You and your spouse or former spouse do not file a joint return with each other
  2. You pay in cash (including checks or money orders)
  3. The payment is received by (or on behalf of) your spouse or former spouse
  4. The decree of divorce or separate maintenance does not say that the payment is not alimony
  5. If legally separated under a decree of divorce or separate maintenance, you and your former spouse are not members of the same household when you make the payment
  6. You have no liability to make the payment (in cash or property) after the death of your spouse or former spouse, and
  7. Your payment is not treated as child support or a property settlement

Let me know if you have any question.

Please note: This advice is provided with the understanding that all the relevant facts have been provided by you. Any change in facts might affect the advice given and hence may not be relied on in such cases. Nothing contained in this reply was intended or written to be used, can be used by any taxpayer, or may be relied upon or used by any taxpayer for the purposes of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code of 1986, as amended.

Customer: replied 7 years ago.
Is there any way for me to claim the $12000 as income? I'm trying to forsee other ways he might want me to claim it.
Expert:  RD replied 7 years ago.
I do not think there is a possible way to exclude that from his income and include in yours.

Let me know if you have any question.

Please note: This advice is provided with the understanding that all the relevant facts have been provided by you. Any change in facts might affect the advice given and hence may not be relied on in such cases. Nothing contained in this reply was intended or written to be used, can be used by any taxpayer, or may be relied upon or used by any taxpayer for the purposes of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code of 1986, as amended.

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