If you have a court order then go ahead and claim it but send a copy of the order along with the tax papers. You are not in arrears until the court says you are not your ex. If they do audit the file, it will take another hearing to set the record straight which should happen sometime in May if the courts are as backed up there as they are here. Oh you might want to tell her that support starts when the judge says not her. Clerical errors are not your fault and you do have two orders.

Just to be clear, you didn't start paying your support until they garnished you in April, even though in February the order was made effective from December?

If that is the case, you indeed did not pay from December to April and do still owe those child support payments. They wouldn't have called it "in arrears" the date the order was issued, but you would need to make those child support payments.

Does your order state she can claim the children if you are behind in your child support?

In any case, the IRS will require you to have a form 8332 signed by the custodial parent in order for you to claim the children. http://www.irs.gov/pub/irs-pdf/f8332.pdf

Brian, the order clearly states.. ARREARS: no evidence was presented in support of any child support arrearage. The judge did not order any arrears. If she disputes this then she can have it recalculated and I am sure they will find a few months where I owe arrears. It took 3 months for the order to be signed by a judge and they started taking the new child support amount from my check in april 2010. The order clearly states I can claim 2 of the 3 children for 2010. It says each year the obligor may claim these exemptions only if the obligor has paid all child support and arrears ordered for the year December 31 of that year. AGAIN, there has been NO arrears ordered yet. How can she claim all 3 kids when there has never been an order for arrears? Is the IRS going to go back and get me in the future is what I am asking. If the court signs an order in May of 2011 saying I was in arrears for 12/09, 01/10,02/10, 03/10 won't that just effect my 2011 tax year? how could they possibly go back on something that was not even done in 2009 or 2010, I can see them saying if I didn't pay it all by the end of 2011 she could use all 3 kids..do you understand what I am saying?..there is no order signed by the court at this time or has there ever to this point.

Please do the responsible thing and catch up on your child support payments. Once you have caught up with your child support payments please try to not fall behind on payments again. If you would like to contact the Internal Revenue Service directly and ask your question the number is 1-800-829-1040. You can talk to the Internal Revenue Service over the phone Monday through Friday between 7 AM and 10 PM.