My Ex Claimed My Kid: Now What Do I Do?

January 31, 2011 by Jan Roberg
Filed under: Divorce, Earned Income Credit, Family 

Ex claimed my kidPlease also read “Stolen Children“.

This happens to people all the time.  You go to electronically file your tax return and it gets rejected because someone else has already claimed your child.  What do you do?  I say fight back, and here’s how.

The first step to fighting back is to make sure that you’re in the right.  Ask yourself these questions:

  1. Are you the biological parent of the child?  Hint:  if your answer is “I’ve raised her like my own.”  You’re going to have trouble winning.  If you’re a grandparent, step parent, aunt or uncle; and the person who claimed the child is the actual parent, you don’t stand much of a chance.  (That said, some folks will have a credible case, but I’d suggest professional help here because it is tricky.)  To go this route you should be the real parent.
  2. Did the child live with you all year?  If not all year, for at least over half of the year?  If you had custody all year you have a much better shot of winning.  You absolutely must have had custody for over half of the year to even think of trying this.  If you’re on the border line, where your ex had the child for half the year and you had half, this might not be worth it.
  3. Is this good for your child?  Generally you’d think that having more money in the household would be good for your child, but if fighting with your ex could cause harm to your child, you might want to stop and think about it a bit.

Step two.  Once you’ve determined that you are in the right and that you are entitled to claim your child, then what you need to do is print out, sign and mail that rejected return to the IRS —keeping your child as your dependent on the tax return.  When you do this, the IRS has to take it in.  They have to look at it and it’s going to throw whoever claimed your child into an audit.  If an Earned Income Tax Credit is involved then those audit papers generally run 11 to 22 pages long.  (11 pages for a straight EIC audit, 22 for an EIC and head of household audit, they’re the same questions it’s just that 22 pages is more intimidating.)

Here’s the scary part, you’re going to get the same paperwork.  It is a little intimidating, but you’re expecting it.  Because you’re the custodial parent, that is your child lives with you, you can answer those questions with no problem.  People who shouldn’t be claiming your kids can’t answer the questions and that’s why you’ll win.  If your kids are in school, you’ll need a document from the school saying they attend and where they live.  If they’re too young for school, you can get a statement from the doctor’s office that you’re their parent and you pay their medical bills.  You’ll have the resources to prove that you’re the parent.

If you’re reading this and thinking, “I can’t prove I have custody of my kids,” then maybe you shouldn’t be filing for them.  You will have to provide some proof:  school records, doctor’s files, church documents, day care receipts, health insurance records, something professional.   Your Mom or a friend can’t vouch for you.

Once you’ve received the audit papers, completed them and sent them back, then it’s a waiting game.  Your ex (or whoever claimed your child) will have to complete the same paperwork.  The IRS will examine the papers and determine who had the proper right to claim your child.  But since it’s you, you will win.

The big downside to this is that it will take months to settle.  Months.  On the upside, once your ex has lost an audit case for claiming your child, it will be very difficult to ever try it again.  You’re not just solving a problem for one year, you’re preventing future problems as well.

What if you need the money now?  That’s the most common question.  Sorry, but that’s impossible.  What you’ve lost, you can’t get back without a fight.  If you have more than one child, and only one was claimed incorrectly, you could file now and at least get part of your refund, then file an amended return later.  I don’t recommend doing that, but I also understand sometimes you need the cash now.

If you try doing this as an amended return there are two consequences:  first, it will slow everything down even more.  You can’t file an amended return until your first return is completely processed.  An amended return will take about 16 weeks to run through the system before the whole audit process begins so you’re basically adding 4 to 5 months to the timeline for solving this issue.  Second, filing a return and amending to add a child reduces your credibility with the IRS.  Your documentation had better be rock solid because you will have no wiggle room for doubt if you submit an amended return to claim your child.

One more thing to consider before you go through with this.  Call your ex and talk it out.  I’m not crazy, hear me out.  You’ve read this far, you know that fighting is a big hassle.  Before you go into warrior mode, maybe you can negotiate a peace treaty.  What do you stand to gain from this?  What does your ex stand to gain?  It’s important that you file your returns legally, but with divorced or never married couples, you can split an exemption:  the custodial parent claims head of household and EIC, the non-custodial parent claims the child tax credit and the exemption.  It could be a good thing for both of you and for your child.  (Remember, what’s best for the child?)  Instead of going to war, you have your ex amend his/her return and you file your return right after the amendment is accepted.  It still is slow, but much faster than going through an audit.  And it’s a peaceful solution.  (Please, don’t even think of trying this if your ex is dangerous.  Safety first.)

Finding out that someone else has claimed your child for taxes can be shocking and financially devastating.  The assumption is usually that it’s the ex, but that’s not always the case.   When you file to claim your child, you will never be told who the other person is.  (Of course, if it’s your ex you’ll probably get an unfriendly phone call so you’ll know.)  It’s scary how often it’s not the ex, though.  Be sure to protect your child’s social security number.  Don’t keep the card in your purse.  Don’t share the social security number with anyone.  Your child needs your protection.  It’s hard enough being a kid, being a kid with a stolen identity is worse.

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Note:  We try to answer all the questions that come to us but please be patient.  It’s our busy season right now.  We may not get to your post until the weekend.  When you make a post and use the capcha code, it won’t immediately show up.  You see, for every normal person like you that posts, there’s about three advertisements for things your mother wouldn’t approve of.  (We try to keep this a G rated website.)   We have to edit those out.  If you need an answer right away, here are some links that might help:

EIC questions of any kind:  http://www.irs.gov/Individuals/Earned-Income-Tax-Credit-(EITC)-%E2%80%93–Use-the-EITC-Assistant-to-Find-Out-if-You-Should-Claim-it.

How to find free tax preparers:  http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers

How to find your local IRS office:  http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1

If you want to hire us, please call (314) 275-9160 or email us.  We do prepare returns for people all over the country (and a few foreign countries as well.)  We are sorry but we cannot prepare an EIC return for someone outside of the St. Louis area because of the due diligence requirements.

Comments

977 Comments on My Ex Claimed My Kid: Now What Do I Do?

  1. bobbie on Sun, 27th Feb 2011 12:06 pm
  2. is there a form from irs i need to have filled out by anyone & how long is this process

  3. Jan Roberg on Sun, 27th Feb 2011 3:04 pm
  4. Hi Bobbie,
    That’s a good question. You’d think there should be a special form for that but no, you just prepare your tax return the way it should be and mail it in. They’ll realize why your mailing pretty quickly. Once they input your child’s social security number into their system it will flag that someone else has claimed him or her.

    As far as the timeline goes, expect this to drag on for months. 12 weeks is not unreasonable. 16 weeks is not surprising. I did see a Yahoo post just the other day from someone who had her situation resolved in less than 8 weeks, that’s pretty good.

    Do expect to receive paperwork from the IRS after you file. It will ask questions about where your child goes to school and things like that. If you get those papers, don’t be afraid of them, just open the envelope and answer the questions. Send that back as quickly as possible because the sooner you get that done, the sooner you resolve your case.

    Good luck!

  5. George on Thu, 17th Mar 2011 10:47 pm
  6. I was engaged but the marriage never went through. Long story short, her son chose to live with over 50% of the time through high school years. I never had power of attorney or legal custody though, so have no ability to get documents from schools, doctors, etc… I paid for most of his clothes, all lunches, cell phone, school expenses (proms, etc…). In 2008 she allowed me to claim him which I did and we discussed switching every other year. In 2010 I paid one semester of his college, along with other expenses mentioned above. He also lived with me for 5 months. But she filed first in 2010 and my return was rejected. The difference is significant (~$4,000). I talked with him (he is 19 now) and he agrees that he was with me more than her. I lost the education credit for him, head of household, and the EIC when I took him off and recalculated the return. Do I have a chance of winning this?

  7. Jan Roberg on Fri, 18th Mar 2011 12:35 am
  8. Hi George,
    I’m sorry but I don’t have good news for you. Since you are not the biological father, and the marriage didn’t go through so you’re not the step father either, then you really don’t stand a chance. This is one of those tough cases because it sounds like you’re a good “Dad”. Your problem is that you don’t meet the “relationship test” according to IRS standards. (IRS standards not being the same as good person standards–sorry.)

    You also have some other issues here going against you. First–since you can’t legally can him as your son (no matter what your heart says), he would have to live with you for the full 12 months of the year for you to claim him as a dependent. Now if you were paying for college and he was living on campus, that would count as him living with you. But even if that were the case, you still have the issue of his mother and she has what’s known as “the higher claim.” So you’re still out of luck there. (Just letting you know in case this comes up in the future.) If she claims him, she’s got him.

    The other issue going against you is the EIC. No matter what, because he is not your IRS defined legal son, you will not be able to claim him for an Earned Income Credit.

    One thing that I recommend to couples who have split up is to “split the credit.” That’s where one ex claims the exemption for the child and the other claims the child for Head of Household and EIC. Unfortunately, you can’t even do that because the IRS doesn’t count you as a legal parent. Once again, you must have marriage or biology on your side for this to work.

    But let’s say that in the future, you and he do wind up living together, you’re paying for college, his mom isn’t doing anything to support him, etc. and she’s not going to claim him. Then, you claim him as a dependent, for relationship you say “other”, you claim the exemption for him and the tuition tax credit. You do not claim EIC. That would be the situation.

    I’m sorry. I really gave you a long, drawn out answer for a simple no, but I wanted you to know all of your options and what your possibilities were.

  9. Jenny on Mon, 28th Mar 2011 6:51 pm
  10. My ex and I got a divorce in 09, we have 3 kids. I was granted sole custody, but I was to claim 2 kids for 09 and 1 for 10. For the year of 09 my ex was just bearly talking to me and sort of seeing his kids. When he got remarried that all stopped, he has blocked my emails, refused calls, etc. I tried to efile and of course it was rejected because my kids ssn was used for another EIC. I have talked to the irs and they cann’t help me with which child was not claimed. I am worried sick about not following our divorce decree, but I am thinking about filing with all three kids. I pay for all their care althought I do get 300.00 a month child support. My ex has decided to follow the parts of the decree the benfit him, but I don’t have the money to fight him for the 50% of medical, daycare, and other expenses I was granted. And after this long story, I guess my question is, would it be worth it to fight for the right to claim all three kids, or should I keep trying to figure out which child or children he claim. (His new wife also has three kids, I am was not sure how many could be claim for EIC)

  11. Jan Roberg on Tue, 29th Mar 2011 1:51 am
  12. Hi Jenny,
    Sorry you had such a hard time. Here’s where you stand as far as IRS rules go: you have custody, the claim is yours! Because your divorce happened in 2009, that means that for your ex to legally claim your kids on his taxes, you’ve got to issue him a release of claim to exemption. That means you had to fill out a form 8332, I’m guessing that you didn’t do that.

    Even though your divorce decree may state that he can claim one of the children for 2010, the IRS doesn’t see it that way. The parent with custody has the right to claim the children. And, even if you did sign the form 8332 to give up the dependency exemption, you still have the right to claim the EIC because your ex can’t claim EIC for your kids because they don’t live with him. You’re actually standing on pretty solid ground.

    Now if you two were speaking to each other, I would recommend talking to him and working out a deal where you get to claim the kids for EIC and he would claim the dependency exemption. But I don’t think that’s going to happen.

    So here’s what I recommend you do; file your return and claim all three children as dependents and for EIC. Print it out on paper and mail it in. Yes, you’ll wait for a couple of months and you’ll get that nasty IRS letter about where your kids live and stuff, but you’ll win the case–in my opinion.

    One other side note: I’m curious, when you filed your return, did you do it yourself or did you go to a professional service? The reason I’m asking is that when you e-file a tax return, you get a reject code and the reject code should identify which dependent was rejected. Now, most regular tax preparers won’t know how to tell which dependent it was, those codes are pretty confusing. But the office manager should be able to go through the code manual and tell you which dependent was rejected. If you want to go that route, find which of your children were claimed, it might be easier on you to just claim two kids instead of fighting for three. It’s an option.

    No matter what you choose, you have right on your side. Good luck!

  13. Chris on Tue, 12th Apr 2011 7:04 pm
  14. Ok i got an E-mail today from my tax lady that my return had been rejected. I have had Custody of my daughter for almost two years. It clearly states in the court order ” THE FATHER SHALL CLAIM THE MINOR CHILD EACH AND EVERY YEAR” Now i’m in a situation. She is like HA HA HA and i’m out 4k what to do?

  15. Jan Roberg on Tue, 12th Apr 2011 9:26 pm
  16. Hi Chris,
    You have a double good case (okay that sounds silly but it’s true.) One, you have custody, and that’s the most important part. Two, you have your divorce decree. Quite frankly, the actual custody beats the divorce decree but you’ve got both so that’s even better.
    Tell your tax lady to go ahead and file paper returns. You’re clearly in the right here. Your ex will get the audit letters and won’t be able to prove custody and you’ll win.
    One thing you might want to consider is splitting the deduction (you claim for head of household and EIC, she claim dependency) but I only say might. I’m guessing she already went ahead and claimed the whole thing and she CAN’T-she’s not allowed to. If you were granted custody, and you really do have the kids living with you and you’re taking care of them she cannot claim EIC.
    It’s going to be a pain in the behind, you’ll have to wait a long time for your refund, and you’ll get that same audit letter your ex will get. The bright side is, you’ve got right on your side. You’ll be able to answer those questions and prove your case. You will win eventually and she’ll probably lose her right to ever claim the kids for EIC again. (That sounds a little vindictive, sorry but she sort of asked for it didn’t she?)
    Anyway, sounds to me like you’ve got a winning case. Go for it.

  17. daniel on Fri, 15th Apr 2011 3:19 am
  18. My Ex claimed my boy who lived with me for 11 months out of the year 2010. I had a signed agreement from her, notorized and all. i attemtepted to claim him, asked her specifically if she claimed him and she said no. Rejected!!!! She said that H&R blocked informed her that it was ok to claim him as a dependant and not claim the EIC and that I can still claim the EIC. i was wondering if this is true. She is the custodial parent, I have the contract with her signature that he is to live with me, what can i do, it is so frustrating that she can always find away to SC@w me out of money and always get away with it . again what can i do????

  19. Jan Roberg on Fri, 15th Apr 2011 1:37 pm
  20. Hi Daniel,
    thanks for asking. Actually, I think you’ll be okay. You can claim head of household and EIC for your son. If she did her taxes correctly, she only claimed the dependency exemption and the child tax credit, that leaves you with Head of Household Status and the Earned Income Credit. It’s called “splitting the dependency” and yes, it is allowed under circumstances like yours.
    You had your son for 11 months so clearly you qualify as head of household as far as time is concerned. (And I’m assuming you meet all the other qualifications as well.)
    Resubmit you taxes putting your son down for EIC and Head of Household but not as a dependent and resubmit. If her’s were submitted correctly, you should be accepted. Good luck.

  21. Gidget on Wed, 20th Apr 2011 5:26 pm
  22. My ex- husband and i have been divorced for 11 years. We have joint custody and our daughters spend equal time with each parent. Our divorce decree states that he claim our oldest daughter and I claim our youngest daughter. Which we have done on the past ten years of tax returns.

    This year he decided to claim both children and my tax return has been rejected by efile because my youngest daughter was claimed on 2 returns and he filed his before mine.

    He states it was a “mistake” but I am not sure the he will resolve the issues. In the mean time the IRS has given me until 4/22/11 to resolve the issue and refile.

    what do I do?

  23. Jan Roberg on Wed, 20th Apr 2011 8:49 pm
  24. Hi Gidget,
    You’ve got a tough one. Being right and winning aren’t always the same thing. Technically, you’re in the right–you have the divorce decree. The fact that you’ve been divorced for 11 years is key because a recent divorce wouldn’t give you any weight, (due to a tax law change) but an 11 year old decree that states you get to claim the youngest child does give you the right to claim her.
    The reason you don’t have a slam dunk is because he does have equal custody, so in a case like this he could actually prove custody, that’s the hard part. Your divorce decree gives you the win, but because of tax law changes– even though you’re in the right, you might get an IRS agent that doesn’t know any better. (Sounds sad but I’ve had that happen before, you’re right, the law is on your side but the agent working the case doesn’t know the law. That’s the only reason I’m worried about you.)
    Here’s my first question: how much money are you out this one time because he claimed your youngest daughter? Let’s say it’s $1500 for argument’s sake. You tell your ex, “I’m out $1500 because of your ‘mistake’. You pay me the $1500, I don’t claim our youngest daughter on my tax return, and we’re squared away.”
    I don’t see him going for this, but I figure it’s worth asking. If he says no, explain to him that you will be filing your return by mail and claiming your daughter. He should amend his return, taking her off or risk facing an IRS audit. You were nice, you offered to not claim her if he paid you first, now you’re giving him the opportunity of making good with the IRS before he get’s audited. Once again, you’re taking the high road and being the good girl.
    He may choose to do the right thing, in which case you’re set. If he doesn’t, you may have to deal with the audit issue. Remember, you’re in the right. You must mail in the return to claim your daughter. Attach a copy of the page of the divorce decree that says that you are allowed to claim her. Also attach the signature pages of the divorce decree as well. (Signature pages are important.)
    This will be slow and drawn out. Whatever you do, send copies of the pages, not the original divorce decree. You may need the divorce decreee as evidence later, keep it safe. Good luck.

  25. Annamarie Arellano on Fri, 22nd Apr 2011 7:03 am
  26. i just had a newborn in 2009. i told my ex i will claim our child. but of course when his ss card came in he ran to do his taxes. well as you know i went and filed and was rejected! i did the return and now waiting. how long will it take for them to process it? will i get my money right away or will it take me through a hassel of papers? help me!!

  27. Jan Roberg on Fri, 22nd Apr 2011 2:04 pm
  28. Hi Annamarie,
    Sorry you had to go through this hassle. Sounds to me like yes, you do have custoday and all that and you’ve already gone ahead and filed the paper return which is what you need to do.
    Short answer: you’re looking at a few months before this all gets settled and you probably won’t see a check until after school starts up again in the fall. Think of it as money lost and when it finally comes, be happy.
    Long answer: your mailed return will arrrive at the IRS office and somebody’s going to open the envelope and start typing your mailed return into the computer. Just like when you efiled and got rejected, that’s what’s going to happen there–then you’re return will get sent to a special area where they process “multiple dependent” claims. Now they’ll automatically issue a letter to your ex, and you’ll get one too. This letter is about 11 pages long. (Sometimes it’s 22 pages long if “head of household” status is an issue too, the extra 11 pages are basically the same as the first 11 so don’t get intimidated, you’re just repeating information.
    As soon as you get that letter, you answer those questions and mail it back (certified return receipt requested to prove they got it.) You won’t be able to answer all of the questions because it will ask about school, your baby’s only two…but you will be able to answer important questions like who her doctor is or where she does to daycare and stuff. If you’re a church goer, where does your baby go to church? They have baptismal records and things like that to back up your claim.
    Your ex, who won’t have all this information because he doesn’t have custody, doesn’t take your child to the doctor or daycare or whatever—he won’t be able to answer those questions quite so easily. Oops, he won’t get his paperwork in very quickly and that’s going to slow things down because the IRS will give him until the very last due date on the letter before they make a determination.
    One piece of advice: a lot of people use their parent’s for day care. If your mom watches your baby while you’re working, make sure you have a few extra sources in your documents to prove you have custody. The IRS kind of takes the attitude that a parent would lie for her kid so make sure you get some extra back up.
    Good luck.

  29. tasha on Wed, 19th Oct 2011 10:44 pm
  30. Hi,if I give my dad grandparent of attonery of my child can he claim him as a dependent on taxes and get any other assistance for him.or can can I still claim him and get assistance.

  31. Jan Roberg on Thu, 20th Oct 2011 3:03 pm
  32. Hi Tasha,
    Thanks for your question. I don’t have enough information to give you a complete answer, but I can help you with a little bit of it. First, you don’t have to give your dad power of attorney to claim your child on his tax return, he’ll just have to qualify by tax standards: the child lives with him for more than 1/2 the year, and nobody else can claim him–that’s going to be the tough part. If there’s somebody else that can claim your child legally, then your dad would lose the ability to claim him.
    But–it sounds like you’ve got some grey in there, so this would be a good situation to talk to somebody in person.
    You also mentioned other benefits–that’s going to vary by state to state as well. If you want to email me directly with more information, I’d be happy to respond. I’d be asking you some personal questions that you don’t necessarily want posted on the internet.

  33. Christina on Mon, 24th Oct 2011 3:34 am
  34. Hi! I recently got divorced in 2010 and got custody of my 3 year old daughter. My ex got companionship. He is to only get her Wednesday and every other weekend but never shows up. He does not pay child support either. My attorney told me he has to claim her every other year and so it was put in the divorce! If he does not have her more than half the year and does not pay child support how can he!? A support order was not even put in the decree! Anyway what i need to know is, how much trouble will I get in if I said no and claimed her anyway? I talked to the IRS and they said he can not claim her even if its in the court order but the court where we filed for divorce said I have to follow the court order. He breaks the court order every week but if I do I know he will take me back to family court for not letting him. Any advise for me? Thanks!

  35. Jan Roberg on Mon, 24th Oct 2011 2:45 pm
  36. Hi Christina,
    You’ve got a really good question and I can help you! You see, according the the IRS regulations, if you were divorced after 2008 (and last time I checked 2010 was after 2008) then if you have custody of your daughter–which you do–then your ex cannot claim her on his tax return unless you sign a form 8332 (or an equivalent written declaration.) Your divorce decree is actually worthless to your ex as far as the IRS is concerned.
    It used to be that he could just make a photo copy of the page that says he can claim your daughter and attach it to his tax return, that’s no longer valid for divorces that happened after 2008.
    So how do you obey the court order and the IRS at the same time? You can actually split the exemption. He can claim her as a dependent and get the dependency exemption and the child tax credit. You claim her for head of household and EIC (if you qualify for EIC). By filling out the 8332 form for him, you’re also giving his tax preparer a clue that he doesn’t have custody. (If the preparer isn’t an idiot.)
    Granted, it’s probably better for you to get the exemption and the child tax credit, also, but if it’s going to get you in trouble with the court signing the 8332 keeps you legal and keeps your head of household status. (That’s a higher standard deduction and a lower income tax brackets so you want to hang on to that. If your income is low enough to claim the Earned Income Credit, then you really want to hang onto that, and you can.)
    Here’s a link to form 8332: http://www.irs.gov/pub/irs-pdf/f8332.pdf
    You’re only going to sign part 1–make him work for it every time (I know that sounds nasty but never, ever sign part 2.)
    If he claims your daughter for more than he’s entitled to–well then you’ve read this post–go after him–he won’t do it again. You’ll be in the right and you will win. Good luck.

  37. Suzie on Thu, 27th Oct 2011 9:29 pm
  38. My ex and I had a dissolution in 2007. Our kids are now over 18. The divorce papers are not clear on what credit to claim for each parent, they only state that the father is to claim the one child and the mother is to claim the other, but our divorce papers do not specify which credit, earned income or child tax credit. The way my tax preparer told me is that since both kids live with me, that was for the child tax credit and the kids are now over 18, so he can’t claim them now if they don’t live with him. She stated I can legally claim BOTH kids for earned income credit. Before the kids turned 18, he claimed one and I claimed the other on the child tax credit, but I claimed both kids for earned income since they live with me. He filed an extension and just recently did his taxes for ’10, and just recently contacted me in a threatening way, telling me I owe him money. Now he has me scared. I called my tax preparer, who told me I did nothing wrong. She said I feed the kids, I buy their shampoo and toothpaste and that money is mine. She said the IRS doesn’t care about divorce; earned income is Who Lives With You. I’m really confused, help!

  39. Jan Roberg on Fri, 28th Oct 2011 4:27 am
  40. Hi Suzie,
    Thanks for writing. I agree with your tax preparer, your ex cannot claim the Earned Income Credit, you’re the only one who can claim that. One thing that might be negotiable though is that even though your ex cannot receive a child tax credit for either child, he could still claim an exemption for one. Depending upon his tax bracket that could still help him out.
    And, the best thing is–it might hurt your taxes at all! You still get the EIC for both children. You still get to claim head of household because you get one dependency exemption (Head of Household gives you a lower tax rate than if you claimed single). The only thing you’d lose is the deduction for the second child’s exemption and that might not even hurt you at all depending upon your income level.
    So let him have his exemption, but he can’t have the Earned Income Credit. Given that the children live with you and not him, it would actually be against the law for him to claim it.

  41. Lynell on Mon, 21st Nov 2011 8:41 am
  42. My childs father and I have never been married, he reluctantly pays court ordered child support, the child has been living with me since birth. I do not work. He files taxes for the child all the time and she doesn’t benifit form the taxes. How can I stop him from filing our child. I did not ever sign form 8332 and never will.

  43. Sarah on Tue, 22nd Nov 2011 8:17 pm
  44. My son was born in 2007. I have custody and my son lives with me all year round (minus 2 weeks a year when his dad actually chooses to come see him). We have court documents with the child support that states we alternate years on claiming our son (we were never married). I get a small amount of child support but no help with daycare, medical, or any other expense our son has. I thought I had to follow the court order and alternate years but by reading this I am getting a different vibe. Our son has never lived with him and never will. What can I do about past taxes where he has claimed our son??

  45. Jan Roberg on Wed, 23rd Nov 2011 1:30 am
  46. Hi Lynell,

    Thanks for your question. It’s a tough one though. The easy answer would be for you to file your own tax return, but since you have no income, that doesn’t really work for you. I’m guessing that the child support isn’t enough for you to live on so perhaps you’re living with someone else?

    If you’re living with your parents, you could have them claim your child and they would qualify for the dependency exemption, EIC, and the child tax credit. That would be a perfectly legal way to settle this issue. Realize of course that an EIC audit would go into effect, but Grandma and Grandpa would win because the child lives with them.

    If you’re living with a boyfriend, it’s more difficult. Because you don’t file a return, your boyfriend could claim the child on his tax return for the dependency exemption only. He cannot claim EIC, head of household, or the child tax credit. You and the child must have lived with the boyfriend for the entire tax year for him to do this.

    So the question becomes, is it worth it? Remember, no matter who claims your child, it will go into an IRS audit because you know your ex also claims the child. (The audit is winnable, but remember it’s still a hassle.) How much benefit will your child get out of it? Will the dad quit paying child support if he doesn’t get his tax credit? It’s not like I have an easy answer for you. You’ve got a lot to think about there.

    Here’s a general rule of thumb that might be helpful: It’s a bad idea to use the IRS just as a means to get back at an ex-boyfriend. Even though he’s in the wrong for claiming your child—remember you can’t claim her so no harm no foul. He is her father. If you can show that there is harm or foul to your child—then go after him. It’s kind of like going to war, you’re headed for a battle and you know you can win but there’s going to be casualties—is it worth the fight? You can ask yourself this question every year, because if the fight’s not worth it now, it may be worth it later.

    It might help if you sit down with a tax professional and figure out what it means for you dollars and sense wise to see if there’s any financial upside for you to do something. Once you look at the whole picture, you’ll be able to decide what’s best for you and your child. Good luck. Sorry I don’t have an easy answer.

  47. Admin Roberg on Wed, 23rd Nov 2011 4:31 pm
  48. Hi Sarah,
    Sorry, I’ve kind of got my answers out of order here. Sarah, for you–two things. First, if you change a tax return, you need a form 1040X–that’s the form you use to “amend” which means you’re changing your tax return. The important part for you would be the second page where they show that you’re changing your status to head of household and you’d also want to include the EIC schedule if you qualify. In year’s that your ex has a court order to claim your son as a dependent, you don’t claim the dependency exemption and child tax credit, you just get the head of household status and EIC. This way you’re obeying the letter of the law with the court order, and you’re obeying the letter of the law with the IRS.

    There’s another blog post I want you to read, it’s about splitting exemptions. Here’s the link: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/

    Now if your ex is only claiming your son for a dependency exemption, then he’s fine, he hasn’t done anything wrong. If he’s claiming your son for EIC, that’s a problem. You could really get him into trouble if he claimed head of household and EIC, so you might want to talk to him before you amend your tax return. Now if you really hated your ex, this could seem like a good thing, but remember, he’s also your son’s father so he’s kind of in your life forever. Once again, you have to ask yourself what the gain is. The tax law is on your side, but you’ll have to determine if refiling is going to be worth it.

    I would definitely put my foot down on all future tax returns–he only gets a dependency exemption with the child tax credit, nothing else– you are the custodial parent, you get everything else. Make sure he knows how you’re filing so that he doesn’t get into trouble with the IRS, but hold your ground and keep everything tax advantage that you’re entitled to.

    I

  49. Dee on Sun, 27th Nov 2011 2:49 pm
  50. I am in a dead panic. I have been divorced since 2005. My decree states that my ex and I use alternate years to claim our son. Our son has not even so much as heard his father’s voice since the divorce. I do receive child support, but he has no contact whatsoever with our son. My ex makes twice the money I do, and I’ve done nothing but struggle financially since the divorce. That being said, I spoke to my ex for the first time, yesterday. He informed me that I claimed our son in a year that was his, (2008 and 2010) and that I am in serious trouble with the IRS. I’m not going to lie, I did claim our son. My ex has never paid one dime more for our son than what he’s forced to. He’s repsonsible for half of the medical expenses, etc., but has refused to pay those. My son has always lived with me, and I’ve provided for him in every way. How much trouble am I in? What will happen? My heart has not stopped pounding since he told me that.

  51. Jan Roberg on Sun, 27th Nov 2011 3:56 pm
  52. Hi Dee,
    First–breathe. Okay? Let’s get to work. First, because the divorce was in 2005, then your ex had a legal right to claim your son on his tax return for those two years. But don’t faint or anything yet.
    Even though he has that right, you have custody, so you are still allowed to claim your child for the head of household filing status and for an Earned Income credit.
    Being realistic, it’s the EIC that can really get you into trouble and you’re not going to be in trouble for that. Let me repeat–YOU ARE NOT IN TROUBLE FOR EIC! That’s the big scary because EIC trouble is a bear.
    Here’s where you are in trouble: You probably claimed your son’s exemption– which reduces your taxable income, and you got the child tax credit–that’s $1000–that’s what will hurt the most.
    Now, remember he’s your ex, he hasn’t spoken to you in a few years, (I’m guessing there’s a good reason he’s your “EX”) and quite frankly he sounds like a bully. (That’s the nice word, I try to keep my blog clean.)
    Anyway, it sounds like he’s trying to intimidate you. Don’t fall for it. What you had was a little “oopsies”, this is not a criminal offense. (Nowhere close.)
    The right thing to do: is to file amended returns for 2008 and 2010, take your son off as an exemption, but definitely keep him on for Head of Household and EIC. Here’s a link to my post about doing that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
    It might be worth it to hire a pro to help you on this. Make sure it’s someone who understands about splitting exemptions–if they tell you you can’t, walk away.
    The consequences are that you’ll have to pay back the $2000 in child tax credits and maybe some more for the deduction for the exemption. (Depends on how low your income is, that might not really affect you.) On the upside, 2011 tax season is here. You’ll be able to claim your son, qualify for the child tax credit, and EIC and that might be enough money to cover what you’d owe the IRS for the other years. Granted, it would be nice to have that money to buy food and pay rent, but it’s quite possible that you’ll come out of this without actually going into debt.
    What I’m saying here is that you file the amended returns, it will show that you owe the IRS money, but you don’t pay yet because the IRS will just take the money they’re owed out of your 2011 refund.
    Resolving amended returns is kind of slow. It’s quite possible the your amended returns will take longer for the IRS to settle than it will take for you to get all of your 2011 information and file your tax returns in February. You might actually get your whole 2011 refund and then have to write the IRS a check. Do pay it though, you don’t want them hounding you for money later.

    Here’s what will happen if you don’t file the amended returns: Your ex will have to submit his version of the tax returns in paper form to the IRS. Maybe he’s already done so. You will get a letter from the IRS asking you to confirm information–it’s about 22 pages long. 11 of those pages are basically repeats of the first 11 pages. Don’t be intimidated–then you’re back to filing amended returns like I said above. He has until April 15, 2012 to try to claim anything on the 2008 tax return–so he’s got a deadline to deal with. If he misses the deadline, he won’t get his refund.

    Another scenario is–he might want to “make a deal” with you. Trading last year’s exemption for this year’s or something like that. If you start hearing that, I’d definitely start sniffing for a rat. Don’t give up what belongs to you. You are the custodial parent–that’s big. And you’re entitled to the exemption for 2011–that includes the $1000 child tax credit. Remember, money that goes to you helps raise your son. You sound like a mom that’s looking our for your child’s best interests–it’s in your son’s best interests for you to hang on to your money.

    Good luck. Be strong. It’s not a perfect situation, but you’ll pull through okay.

  53. Erica on Wed, 30th Nov 2011 3:16 pm
  54. Here is my situation… My ex and I have been divorced for 3yrs and we have 3 kids together. We have joint custody with the kids living with me and him getting them every other weekend and 6 wks out of the summer (2wks on 2wks off) which was just determinded this Sept 2011. We just recently went to astablish child support which was put into effect as of Nov 2011 (which he has not paid yet). I told the FOC that I was claiming all 3 of our kids on the taxes since they do live with me, which in turn reduced the amount of CS he was going to be paying since I was taking the credit for the kids, and there was never anything put in the divorce decree who got to claim them, in the past we tried to agree and split who claimed 1 or 2. Now things have gotten real ugly between us and I told him that Im claiming all 3 which I feel I am intitled to do. He of course was pissed, so the lady at the FOC told him to go ahead and claim all 3 even though I am and let the IRS decide who gets the credit. What can I do he usually gets his W2′s back first, and will file before me? Do I have the right to claim all 3? Next year when he finally is forced to pay CS due to income withholdings does he have the right to claim them just because he pays CS, but the kids live with me?

  55. Jan Roberg on Thu, 1st Dec 2011 2:25 am
  56. Hi Erica,
    Thanks for your question. You brought up something really important that I don’t think I’ve addressed in this blog before: The IRS does not want to be the decider of who gets to claim your kids. I kind of think the FOC was doing a cop out there. In fairness to her though, I think it’s confusing for the courts too, the IRS rules and the court rules don’t always coincide. The IRS winds up deciding lots of cases, but they don’t want to–just sayin’.

    But what does that mean for you? First–you have custody. Custody trumps all. (Yes, he gets them sometimes, but you’ve got the kids over half the year, you win.)

    As the custodial parent, you will always, I repeat ALWAYS, be the one who can claim your children for the Earned Income Credit and for the Head of Household filing status. The is the right of the custodial parent (you).

    You may, out of the goodness and kindness of your heart, release the exemption of one or more of your children to your ex so that he may have the benefit of the child tax credit and the exemption deduction. He will never, I repeat NEVER qualify for the Earned Income Credit using one of your children. He will not be able to claim Head of Household using one of your children as head of household.

    The only way your ex husband could claim your kids to get EIC or Head of Household is if the children lived with him for more than 1/2 the year. For example: if you had perfectly even 50/50 custody, then you could share the kids that way.

    But you don’t have even custody so the tax law stands with you.

    Paying child support means nothing to the IRS. He could pay you a million dollars a year in child support but if the kids don’t actually live with him, then too bad.

    So here’s your problem–he’s going to get his w2′s first and file and claim all three kids for everything and when you try to file your return will get rejected. If that happens, you’ve got my instructions above on what to do. But what you’re trying to do is a pre-emptive strike, get him before he gets you.

    That sounds pretty childish, forgive me. But that is kind of what we’re trying to do. You have the tax law on your side, if you file a return claiming all three children, you will win the audit. But if he files first, even though you’re in the right, it will take you months to settle this issue–a good 16 weeks extra as opposed to getting your refund in 2 weeks or less. So you don’t really want to go that route.

    This is where your negotiation skills need to come into play. 1. First you want to determine what’s best for the children, because the kids should always come first. It might help to get a tax local professional involved–what you’re talking about is splitting an exemption. Here’s a link to my post about doing that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
    Don’t use a first year preparer, get someone with experience who has done this before.

    2. Next you’re going to figure out just how much you lose be allowing your ex to claim the exemptions for your kids. If he gets one, what happens, if he gets 2, what happens, etc. Remember, you’re only going to give him an exemption, not the EIC.

    3. When you’re ready, start the bargaining. If he wants you to complete the form 8332 to release the exemption, then he’s going to have to make nice and only claim what he’s allowed to. He it won’t, then you’ll have to let him know of your intentions to also file which will get him audited by the IRS AND since he will lose, not only will he have to pay back ALL of the refund, but he’ll also have to pay the fines, penalties, and interest payments associated with the refund. In addition to that, since the FOC said to go ahead and file the tax return, that means that the court is counting the tax refund as income to him, therefore it will raise his child support payments and he’ll have to go back to court again (pay his lawyer I guess) to get that lowered.

    So, he can see it your way, or he can suffer the consequences.

    Now, although things are nasty right now, he is the father of your children and you are relying on him to make time child support payments. If its at all possible, you’re really better off coming to a friendly solution. (Once again, what’s best for the kids.) But “friendly” is not roll over and play dead. But you can use your tax lady as an excuse. “I’m sorry honey, but the tax lady said I can’t let you claim the kids for EIC.” Take the heat off of yourself. You can put you and your ex on the same team “doing what’s right for the kids” (maybe not, but it’s worth a try.)

    My point is, you may be more persuasive being “on the same side” than coming at him like a sledge hammer.

    Bottom line: if it goes to an audit, you win. It’s just that going to audit is a pain in the behind so if you can prevent it, that’s your best deal. Good luck.

  57. Bill Roper on Fri, 2nd Dec 2011 12:54 am
  58. Thanks for this info first!
    I have 100% custody and we have joint legal. I have had this since before she was 1 and is about to be 9. My ex ( girlfriend, baby mama) asked to claim our daughter because she needs the money. I am 50/50 on this. My real question is if I let her claim our daughter, will that give her some kind of extra ammunition for her to try and claim custody of our daughter legally?

  59. Jan Roberg on Fri, 2nd Dec 2011 1:38 am
  60. Hi Bill,
    Thanks for posting. In your case, you’ve got 100% custody. You are the one with the exemption, you may allow your ex to claim the exemption for your daughter by filling out a form 8332. (You can get the form at the irs website: http://www.irs.gov/pub/irs-pdf/f8332.pdf) Giving her this form will let her claim your daughter for an exemption and for the child tax credit, you will hang on to the Head of Household filing status and the Earned Income Credit if you qualify for it.

    You can do this legally by splitting your exemption, and here’s a link about doing that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/

    There are two things that are important to know: 1. When you release the exemption, only sign the release form for one tax year, don’t sign the part releasing it forever. You want to hold on to the privilege of releasing it again, not just allowing her to claim it every year. Also, 2. Don’t give away the EIC/head of household status. You have 100% custody so that’s your right. If you want to “gift” money to your ex, that’s much better than letting her claim your daughter for EIC and head of household.

    Why not just let her claim she has custody so she gets EIC instead? For one thing, it’s illegal. Would you get caught? Probably not in this case, but if you did get caught then you could be dealing with fraud charges. But here’s the other reason you don’t want to give up your “custody” status. You’re a guy. Guys are 100 times more likely to be audited for EIC fraud than women. So even though you’re legit, because you’ve got 100 percent custody, you’re still more likely to get audited than a woman with 60% custody. What’s going to trigger that audit? If your daughter was claimed for EIC on your ex’s return this year, that could do it.

    It always comes back to, What’s best for your daughter? In your case if helping out the mom is good for your daughter, then by all means let her claim the exemption and the child tax credit–Child Tax Credit is worth $1,000. If you feel you need to help the mom more than that, do it some other way than letting her claim the EIC. You need to protect your rights as the custodial parent.

  61. Lauri on Fri, 2nd Dec 2011 4:00 pm
  62. I have primary custody of our 12 year old daughter and since our divorce in 2001 my X has claimed both the 12 year old and our oldest daughter. This is disturbing to me because he pays very little in child support and states that is his only responsibility so while my husband and I are constantly paying for the long list of things she needs he gets his taxes filed before ours because he has one W2 and my husband is self employeed so ours takes longer. He even agreed to let me claim them and instead claimed them himself!! Our divorce decree says I have to make over $18,000 yearly to claim them every other year but I am a full time student and my attorney says the amount was to say $3000. My daughter hardly even visits her father so she obviously lives with me most of the year. He even took both exemptions for the relief period (I’m sorry can’t remember what it was called) It’s like he is getting all of his child support back for the year! (We even decreased his child support one hundred dollars so he could help pay for braces and he exceeded the time limit, our child support was to go back up but never did!)

  63. Jan Roberg on Fri, 2nd Dec 2011 5:00 pm
  64. Hi Lauri,
    Thanks for your post. You’ve got a different problem. (It seems like everybody has a slightly different twist.) Your issue is the 2001 divorce decree. You do not have to sign a form 8332 for your ex to claim your 12 year old. (He is supposed to attach copies of pages of the divorce decree and mail it in–but that never happens.)
    That said, you have custody. It won’t get you the dependency exemption or the child tax credit, but if your income is low enough it will qualify you and your husband for the Earned Income Credit. (Because you are married, the Head of Household filing status you could have claimed is irrelevant.)
    If your husband’s income is too high for you to qualify for an earned income credit (married claiming 1 child you’d need to make over $38,000 combined), then there’s really nothing you can do that would help you tax wise.
    But—and this you’ll have to ask your lawyer about because I’m a tax person, not a lawyer–your divorce decree says that you have to make over $18,000 to be able to claim your child every other year on your tax return. Well, you’re married. Married people have joint income. In my book so that might qualify you to claim the exemption every other year. But do check with your attorney on that because the states have different laws and that’s more of a “legal” issue than a “tax” issue.
    Of course, if you and your husband’s combined income is less than $18,000–well then you’re looking at claiming EIC..
    So– you can go back and amend your 2008, 2009, and 2010 tax returns to claim your 12 year old daughter for the Earned Income Credit. And yes, it will be nasty and there will be audit letters, but the IRS rules are on your side on that. (See my post about splitting exemptions.)
    I wasn’t sure about your oldest daughter and how she figured into the equation. Is she the child of your ex? Basically, the same rules will apply about claiming her as well (assuming she’s still young enough to claim.)
    One last thing, if you are thinking about refiling, you’ll want to run the numbers to see if it’s worth the headache before you do it. If you’re only getting $500 or something, that could be more trouble than it’s worth. On the other hand, if you’re looking at thousands of dollars, well of course that makes an important differnce. It’s probably worth the money for you to hire someone to prepare the amendments for you. (I know a really good tax person in St. Louis!) Here’s a link to a website that can help you find an enrolled agent in your area: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx?Token=

  65. Joanna on Wed, 7th Dec 2011 6:14 am
  66. I have primary custody of my 5 children with my ex husband. Our divorce was fnalized in June of 2008 and it stipulated that I would claim the two oldest children and he would claim the youngest three from 2008 and every year thereafter as long as he was current on child support. He does not have visitiation except for two weeks out of the summer that he has only used once since 2008. I do not remember signing a form 8332 and every year since 2009 per the advice of my tax preparer I have claimed all 5 kids as dependants and for EIC since the children resided with me for 12 months out of the year. Every year I have submitted a paper copy of our return since it would reject for the childrens ssn being used. I just received a letter from the IRS stating that the youngest 3′s SSN had been used on other returns and they were doing a check to see if the numbers were correct or not. I know my ex husband has used their SSN numbers on returns for the last two years since I just talked to him about it. Is there anything I can or should do? He hasn’t been behind since 2008 (til now) and I want to make sure that the tax advice I received was correct: that I can claim them despite what the divorce decree states since I had them for 12 months and provided more than 50% of their support … I was told federal law trumps divorce decrees?

  67. Jan Roberg on Wed, 7th Dec 2011 4:19 pm
  68. Ji Joanna,
    I just got off the phone with the IRS because I wanted to make absolutely sure that I was right about this, and I am: your divorce decree states that your ex-husband may claim your three youngest kids if he is currrent on the child support. The IRS rules say that a divorce decree written after 1984 and before 2009 (that fits your decree) must have a statement that says the “noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.”
    In plain English, your divorce decree has conditions, the IRS can’t prove he paid support so the IRS does not recognize your ex-husband’s right to claim the kids. Your tax person did give you good advice!
    It sounds like the IRS is just investigating the claim right now. Let them investigate. Do not send them anything unless they specifically ask you for something. It sounds to me like your ex is the one who needs to be sending things in. If you are asked to send them something, make sure you write your social security number and tax year on every single piece of paper you send them.
    In the meantime, breathe easy and have fun with the kids. It’s that time of year so here’s a website for you: http://www.noradsanta.org/en/

  69. Jennifer on Thu, 15th Dec 2011 1:31 am
  70. My Ex scared me into filling out a 8332 for our youngest son. Is there a way to void that? We are court ordered to each claim one child, I have custosdy of both full time(he doesn’t choice to see them) after reading the above I see that the court order is not important to the IRS. I feel that since I support both full time I should be able to claim both.

  71. Jan Roberg on Thu, 15th Dec 2011 4:37 pm
  72. Hi Jennifer,
    That’s a really good question. You can’t void an old claim–for example–let’s say you signed the form for last year, it’s done and over so you can’t go back. But–you can revoke the 8332 for future years – in case you signed the part that gave your ex persmission for all future years. Here’s the form: http://www.irs.gov/pub/irs-pdf/f8332.pdf It’s the same 8332 form, but if you look at Part III you fill that out and attach it to your tax return.

    Now, just to be absolutely sure about one thing–even though you released the exemption for your ex to claim your youngest–you still are allowed to use your youngest for EIC purposes (if you qualify for that tax credit.) A signed 8332 won’t let him claim EIC so if you didn’t get to claim 2 children for EIC purposes, you can go back and amend for that.

    Good luck.

  73. Sandra Garza on Thu, 15th Dec 2011 5:34 pm
  74. My ex and I were divorced in 1998. He has not paid child support in five years. I have custody of the youngest. In the decree it state he can claim my youngest and I can claim the oldest. It doesn’t state anything about if he doesn’t pay child support. “For the tax year 1997 and for each tax year thereafter until the children are no longer eligible to be claimed as dependents under the Internal Revenue Code” DP shal claim KP as a tax exemption on his retern; and SP shall claim DPJ as a tax exemption on her return.” I finally called him last year and told him I was going to claim my youngest. He stated that he was following the decree and claiming her. We both did and now I have a letter from the IRS. Will I be in charged because the decree states he can claim her.

  75. Sandra Garza on Thu, 15th Dec 2011 5:46 pm
  76. I had custody of both children. The oldest is now 22.

    Thanks for your help.

  77. Jan Roberg on Thu, 15th Dec 2011 6:16 pm
  78. Hi Sandra,
    I’m sorry but in your case it sounds like your ex does get to claim your youngest daughter. The catch here is that your divorce decree has no conditions–that’s the big point there. Mind you–that’s what I’m seeing from your question there, no conditions. But–if I were you, I would double check the decree for any type of condition, but I’m thinking there aren’t any from what you’re saying.
    That said, even though your ex gets to claim your youngest child, you still get to claim her for EIC and head of household status (if you qualify). That will help a bit with the tax that you’ll wind up having to pay back. You only lose the exemption and the child tax credit–the child tax credit is worth $1000. The exemption is worth your tax rate times $3650–so if you’re in the 15% tax bracket then that would cost you another $548. (More if you’re in a higher tax bracket.)
    Additionally, the IRS likes to assess late payment penalties, plus interest. Ouch! They will never forgive the interest–just warning you up front. But, you may be able to have them waive the penalties if you’ve never had an IRS problem before. You have to ask them to do this–you must say, “I would like you to waive the penalty.” It’s worth a try, if you don’t ask you don’t get. The penalty will be about 25% so it’s important to ask them to waive it. Good luck.

  79. Jan Roberg on Fri, 16th Dec 2011 4:50 pm
  80. This message is for a different Christina who sent me an email, but I couldn’t respond back–

    Can your Mom claim you and your kids instead of your ex? That’s a really good question and it’s important too so I’m posting it here.
    In this particular case, Christina has custody of the kids and they all live with Christina’s mom-who I’m going to refer to as Grandma.

    Since Grandma is supporting Christina and the kids while Christina is in school, Grandma can claim Head of Household–if Christina does not claim the kids. Christina cannot claim Head of Household if Grandma is supporting her.

    Now, if Christina has income, she and Grandma tie for the right to claim the kids for the dependent exemption, child tax credit, and EIC. Because Christina is the Mom, the tie goes to her (kind of like baseball, at first base tie goes to the runner) –but if Christina chooses not to claim her kids, then Grandma has the right to claim them.

    This is important because Christina is making a choice. And she can choose to not claim her kids if it’s in their best interests. What I would do in a situation like this (meaning a loving family working together for what’s best for the whole family) is to sit down together and do both tax returns at the same time and see what’s going to give you the best return depending upon how much income each person has. Work together for the good of the whole family–totally cool, totally legal.

    In families that aren’t like Christina’s (and if you have one of “those” type of relatives, you know what I’m sayin’) you can’t do that. That’s why the IRS has all these rules and tie breakers and stuff like that– so when push comes to shove people know exactly what their rights are.

    I almost forgot something–Christina’s in school. Depending upon her age and income, it’s possible that Grandma could even claim Christina as a dependent as well. I don’t have enough information for a positive answer, but if Christina meets all the requirements, Grandma could even claim Christina as a child for EIC purposes.

  81. Leo on Sat, 17th Dec 2011 12:29 am
  82. My ex and I have been divorced since Sept., 05. She was granted physical custody of our 2 minors and we have joint legal custody of them. Although she has physical custody, our oldest who is 17 this year has been living with me for the WHOLE year and I provide all the support for him minus his cell phone bill. I have been court ordered to pay child support, but have fallen a little over a year behind on payments due to this change, as well as other factors. I want to claim my son on my taxes for this coming year. Do I have the right to do so and/or will the IRS garnish it? The court order doesn’t state who gets to claim who each year, although it did grant her the right to claim them the one year following the proceedings….

    I’d like to add that we have a court date coming up next year to hopefully modify the current court order and shes requesting to claim both kids for ALL tax purposes. Is that possible now that my son is living with me???

    Thank you!

  83. Jan Roberg on Sat, 17th Dec 2011 1:41 am
  84. Hi Leo,
    Thanks for your question. When all is said and done, the bottom line is that you are the one who has custody of your son and therefore you have the right to claim him on your tax return.
    Your divorce decree doesn’t say anything about who gets to claim the children now so you get the full right to claim–exemption, child tax credit, head of household and EIC (if your income qualifes).
    Now I’m not a lawyer and I’m not allowed to give legal advice so I can’t tell you about your court order. That said, if the court does grant your ex the right to claim your son for tax purposes, that only lets her claim the exemption and child tax credit–you get to hang onto the head of household status and EIC.
    So you have the right to claim your son, but your other question–will the IRS garnish it? They can’t garnish it, but there’s a possibility that things can get screwed up if your ex also claims your son. If she files first and you try to file, then your tax return will be rejected when you go to efile. (It’s a pain in the behind.) So you’re thinking you’re getting a nice big refund and then–whammo–nothing.
    Now what you’ll do is go ahead and file your return by mail–the IRS will send letters, all the stuff I wrote about above, but in the end, you are the custodial parent and you are on the side of right, you’ll win. Hopefully, you won’t have a problem, but I just thought I should warn you of the worst case scenario. Good luck.

  85. Diane on Sat, 17th Dec 2011 2:23 am
  86. Hi. I have a grandparent question. My daughter and grandson live with me. The other grandparent has claimed an EIC on the baby, but he has never lived there.
    Because the other grandparent did her taxes, at a tax preparer office, and first, my return was rejected. I mailed my return and recently have received a letter from the IRS asking if I made a mistake.
    Because this little boy was born in mid Dec 2009, half of his year is only a few days. My daughter (no income) did have an apartment at that time, but was unemployed and I paid for the rent. Once the baby was born, she stayed at my house most of the 14 nights. She continues to live with me, a year later….
    Not sure if it matters, but the child’s father, her boyfriend is married to someone else, and has worked very little in the recent few years. He, too, is at my house most of the time. But, he is not related to me…..Neither parent will have taxable income or returns for 2010.

    How do I show the IRS that the baby and my daughter have lived nd continue to live with me? They requested school records, but he is a bit young for school…

    What information is useful to prove they lived here? How can a tax prep office prepare a return for an EIC if the child never lived with the other grandparent?

    Suggestions? It is tax time again, and trying to file first is hard to do. I do not qualify for the EIC, but intend to claim my grandson and daughter again.
    Thanks, Diane

  87. Jan Roberg on Sat, 17th Dec 2011 4:24 am
  88. Hi Diane,
    Thank you for your question–you hit a whole bunch of issues with one situation. The thing is–it’s not that unusual to have multiple little issues to settle–it’s kind of what makes us unique, right? Anyway, let’s take care of you.
    First, you’re right, your grandson is a bit too young for school (even though, as your grandson, I’m guessing he’s amazingly bright and handsome too!) The school question is a standard form letter and obviously, you won’t have school records for him. What you might possibly have could be: hospital record (from his birth) or a baptism record from church, or insurance record for the baby showing your address, or pretty much anything saying the baby lived with you. I used to work on those audits when I was at a big box tax company and we got the IRS to accept a letter from some neighbors saying that the child lived in a certain house. (They will not accept letters from a parent or relative-I guarantee that, a letter would have to be from a non-relative and that’s an absolute last ditch effort.) A letter from your church, if you have one, is acceptable. You don’t need to have all of these sources, I’m just trying to give you possible ideas of ways to prove the child lived with you.
    You may have heard about the rule that a child has to live with you for over 6 months in order to claim him. That’s true, except for when the child is not yet six months old. The baby can be born on December 31 and can still be claimed as a dependent.
    How can a tax prep office claim EIC for a grandparent if the child never lived there? Technically that’s illegal and there used to be a $100 fine on the tax preparer for each offense. The government has raised the fine to $500 this year. That said, there are some preparers that will still break the law (don’t get me on my soapbox.) There are some preparers that don’t mean to break the law, they’re just stupid (sorry, but true.) Sometimes, the preparer is not at fault, some clients lie. But in this case, to be fair, it could just be one of those–Holy Cow, what in the heck should we do?
    To be honest, the way I read your case, clearly you are the one who should be claiming the grandchild. But to be fair, I’m betting that the case presented to the other tax preparer sounded like the other grandparents should. That’s why it’s really important to argue your case clearly and effectively. You should go with the assumption that the other grandparents made a decent case to their preparer (although I’m guessing they really didn’t.)
    And I think you’ve got enough for your case. That 14 days is harder to prove, but you clearly can prove 20111 and that makes your 2010 case stronger.
    Your first job is to finish filling out the IRS paperwork and get it back to them. Proving your claim now, helps you in the future.
    You do not have to file first. It makes it easier to claim your grandson because you won’t get rejected when you e-file, but if you get rejected, you do the same thing as you did this year and file a paper return. Eventually, the IRS will tell the othe grandparents, “No.” If they continue to claim your grandson when they shouldn’t, the IRS will eventually flag their social security numbers for EIC fraud and they won’t be allowed to claim EIC for any child. (I wish I could wave my magic tax wand and just make it happen for you but it doesn’t work like that.)
    Bottom line: I think you have a winning case. It’s not going to be the easiest, but being right is 90% of the battle.
    Here’s one more thing to think about: who is being harmed, who is being helped? Clearly, you are being harmed by the other grandparents claiming the boy. That said, are they using the money to help the child? Is there good coming from there? I’m not getting that feeling from your letter, but I do believe it’s worth asking. I definitely think that you should be claiming the child for this year. But, depending upon how much damage can be done to the other grandparents if you win the case–if there is any family bond or friendship, it could be in your best interests to talk it out and–I hate to say make a deal, that seems tacky but that’s pretty much what I mean. If you lose, how badly will you hurt–if they lose, how badly will they hurt? How will this hurt your grandchild? It’s just something to think about.

  89. Diane on Sat, 17th Dec 2011 4:43 am
  90. Hello again,
    The money received for the EIC was not provided for the child. I believe the maximum credit was claimed, and some money was given to the childs father, but nothing for the benefit of the child. My husband and I have been providing housing for the parents(and child), and financial help, for several years.
    The other grandparent evidently “split” the EIC money with her son……and kept the rest.
    I claimed my daughter and grandson in 2010 and intend to do so in 2011.
    The only part I am a bit uncertain about is getting paper work for the 14 days…..I think we can get a letter from my daughters counselor. Is any non related person an option for a letter stating they knew the baby (and daughter) lived with us? Thanks for the info….. Also, is there anywhere I can see the 11 page audit form?
    I have only received a letter from the IRS, no forms to complete.

  91. Jan Roberg on Sat, 17th Dec 2011 6:51 pm
  92. Hi Diane,
    You won’t get that 11 page form because you didn’t claim EIC, only the exemption–that’s actually a good thing. Rule one, is never send the IRS something they didn’t ask you for. Forgive me for making the assumption you received the full 11 page letter.
    Here’s my question to you: Are they only asking if you made a mistake? Or are they asking for proof. If they are just asking if you make a mistake, just write back and say, “No, claiming my grandson was not a mistake. He lived with me and his mother for his entire life in 2010.” Or something to that effect.
    If the IRS is asking for proof, then I’d get a letter from the counselor. I just went back and reread your letter, it sounds like they are asking for proof. Write your statement and submit the counselor’s letter. If you have receipts form paying any of the hospital bills that would also be good (I didn’t think of that one before.)
    Make sure the you write your name and social security number on every page that you send to the IRS. Also, keep a copy of what you send to them. They are notorious for losing papers. (I’m not being rude, if you talk to them, they’ll admit it.)
    Good luck.

  93. Diane on Sun, 18th Dec 2011 1:40 am
  94. Hi Jan,
    Yes, I got a letter asking if I made a mistake, and to be sure I can claim a dependent or qualifying child. The letter lists the tax rules, including the “living with you” requirement. It says I need to ammend my return if I have made a mistake. After receiving the letter, I called them. I asked how I could prove this, as I was intending on claiming the same people this year. They told me on the phone about school records, etc. They also said to file as soon as possible before the other grandparent.. I will try and file as early as possible, but I want this taken care of, and hopefully before the EIC is received 2 years in a row. It is my understanding that if you incorrectly claim the EIC,all parties can be disqualified for 10 years. At some point in the future, my daughter may be able to use the credit.
    Because my daughter is receiving gov benefits, there are no hospital bills.
    Because living with me was a big issue between the parents, there may be note of it in the pediatrians notes. Perhaps a Dr letter would be possible, My concern is, the longer we wait, the harder it is to get proof. If the baby was born mid Dec 2010, and was in the hospital about 4 days, we are talking about proof for 10 days of his life. The main issue is he NEVER lived with the other grandparent, or ever even visited the other grandparent during the 10 days. I guess I resent thousands of $ benefiting an adult that does not qualify. The credit was intended for the benefit of the child.
    So, should I wait until the IRS asks for proof in writing? If I give them too much too soon, what is the disadvantage?
    Is it possible to get a social security card number changed? A non confrontational solution would be great. After all of the support I provide, I would hate to have to hire an attorney too. Thanks
    Diane

  95. Jan Roberg on Sun, 18th Dec 2011 3:16 am
  96. Diane–Girl, you are standing on my soapbox! The Earned Income Credit is for people who need/deserve it. I hate it when people use it illegally–and innocent babies’ social security numbers are auctioned off like prizes. (I had a client whose child’s social security number was stolen at the hospital. We never would have figured that one out but the police uncovered the scam and arrested the folks. My client wasn’t the only victim.)
    Okay, I’m off of my soapbox. Here’s my advice–Do not amend your tax return under any circumstances. You are in the right, you did not make a mistake. It’s a pain in the behind for the IRS to pursue these things so if you back down, it makes their life easy. But you’re in the right so hold firm.

    I would round up the proof now, because I’m pretty sure that you’re going to need it. You can send it in now, but keep copies because I’d bet $5 that you’ll get a letter after you’ve already sent it in to send the proof. (I’ve got a little experience with that.) I think doctor’s records are good, especially if you went to the doctor with the baby.

    I do not know about being able to change the baby’s social security number. Besides, the child’s father is still in the picture and he did benefit from his parent’s claiming the boy so I’m thinking the new number wouldn’t really be safe either. I’d check with social security though, they’re the ones who can give you the right answer.

    The bit about being disqualified for EIC–your daughter did not illegally claim EIC, the baby’s other grandparents did. They will not be able to claim EIC, your daughter should be fine for claiming EIC in the future.

    Unfortunately, this will not all be worked out before 2011 tax returns are filed. The advice about filing first, sadly, is about the best I can offer. But I hate that advice because responsible people wait and get all of their documents together before they file.

    You know that you are in the right. 2010 will be difficult to prove, but 2011 you’re solid. You may want to remind the other grandparents that you intend to file and claim your grandson for 2011. And the penalties involved with fraudulent EIC returns will be: at least 25% for late payment of taxes for the money they’ll have to pay back to the IRS, plus interest, and a possible 20% penalty for fraud. Maybe they don’t know all that and you would be doing them a favor explaining it. Just a thought, you know, ounce of prevention.

    And even though I think proving the 2010 case is difficult, what do the other grandparents have? Because this whole thing will take time and bottom line, when you stand tall and don’t back down, then they’ll be required to come up with their proof–and I’m betting they don’t have any.

  97. Diane on Mon, 19th Dec 2011 1:59 am
  98. Hi Jan,
    I so appreciate your posts. This is making me crazy. One more question. For part of the tax year 2010 my daughter had an apartment, but no income. Her dad and I paid her expenses. We have checks for the rent payments. For the months she was in the apartment, if we paid, does that count in our part of the year for support.? If she lives elsewhere and we pay, does that mean she is not really living with us? She was a part time student, only for a term.
    There is no relationship with the other grand mother, and the threats to my daughter make this even more messy. She was told she better beg me to ammend my return, or else.
    Unfortunately, that is the wrong thing to do, and I don’t lie.
    Will an affidavit from a non family member help? I work part time for an attorney, and one of my good friends is an attorney. They are good community members and their profession frowns on fraud.
    I woud like my ducks, (and beavers…Oregon joke) and paper, and letters in a row….and be done with this. I would even like to deliver it to our local office, but you nicely said, “do not give anything you have not been asked for.”… Kind of like not answering a question, in court, that has not been asked….. Have I said this is so wrong… And thanks again for your information. I am odd woman out on this, and several people are mad at me….. Diane

  99. Jan Roberg on Mon, 19th Dec 2011 2:51 pm
  100. Hi Diane,
    Doesn’t it seem that families can sometimes be a little crazy over the holidays? So you’ve got relatives threatening your daughter? Oh isn’t that pleasant? We’ll address that in a minute, but first let me go back to your first question: does it count as support if you paid your daughter’s rent. Yes, it does. But remember, she needs to live under your roof for over half the year. (Plus, I think there’s no doubt as to your supporting your daughter. If you’re looking at those worksheets, in your case it pretty much seems like a no brainer–you support her.)
    Now, about amending your return. Like I’ve said before, you’re in the right–I’m not arguing that. Here’s the other side–they’re threatening your daughter! Even if you’d like to erase these people from your life–your daughter is still involved with the baby’s dad. They’re not going away. Financially–let’s say they got and extra $5,000 for claiming your grandson. (Which I’m guess they already spent.) Now they will have to pay all of that back, plus 25% penalty, plus interest, and possibly another 20%. They could be looking at a pay back of $7500, so they’re sweating bullets.
    How much will you lose if you amend your return? I’m guessing you’re in the 25% tax bracket. With an exemption of 3600 the tax on that would be 900, plus another $1000 for the child tax credit. Add in penalties and interest and you’re still coming in under $2500. (It’s also quite possible that you could get the penalties waived because I’m guessing you’ve never had a tax penalty in your life.)
    There’s right and wrong and there’s also “let’s make a deal”. While I’m a big advocate of walking the straight and narrow, it might be in your family’s best interests to “make a deal” for the sake of your daughter and grandson. You have to really assess the situation there. There is no shame in amending a tax return. It won’t come back to haunt you later. And when you’re talking to people, remember, it’s what the IRS recommended in the first place.
    Getting the ducks and beavers in a row. (I’m going to have to go to Oregon.) I’d line up as much proof as possible. Go ahead and take your letter, a copy of your tax return, and your proof with you to the local IRS office and sit down face to face and talk with someone there. Let that person decide what to send in. Bring your grandson with you and hold him on your lap while you do this.
    I know, it sounds a little theatrical, but the whole possession is 9/10ths of the law is a pretty persuasive argument.
    The one thing that you are not going to get out of this no matter what is to get it all settled quickly and be done. Ain’t gonna happen. You’re looking at a good 16 weeks, maybe even more. If this gets settled any faster than that you should be jumping up and down for joy. Just to give you the timeline.
    If you do chose to amend your return, (okay, this is my nasty side, I just can’t help it) you need to determine what’s in it for you. You know they’re in trouble for about $7500, maybe even more. What are they going to do for you (and more importantly the baby) to make you stop? (I wouldn’t recommend babysitting, they’re probably not a good influence.) 1. They have to stop threatening your daughter. 2. They should pay you the $2500 that you’ll be out if you amend the return. 3. They can never claim the baby again, ever.
    Good luck. I know this isn’t easy. Most importantly, keep safe.

  101. Diane on Mon, 19th Dec 2011 6:15 pm
  102. Jan, Again…thanks for your suggestions…

    My variation of the solution was to do something like you suggested. Pay me the difference an ammended return would have on me. Pay the remainer to an account for expenses for the baby.
    When my daughter has suggested some ideas to her boyfriend, she has been told that flat out, they will not co operate. The father and grandmother think I am in the wrong. They want my daughter to write a letter, and lie about where they lived, and that she gave her EIC to the other grandmother. I explained to my daughter that no one can give away a tax credit…..and no letter suggesting such would help. The father and his mother do not have problems with not paying bills, or penalties, or interest,, and are not concerned that they got the money, and yes, spent it. I don’t think they are concerned about the IRS, but I know better….I would rather not be owing the IRS, and once again, it is wrong.
    In a perfect world, this could be worked out, but we dont have that situation.

    I dont really care about the 16 weeks, but I would like to prevent another EIC for this tax year. I am trying to work on my taxes now, but since I have a combination of income, I may not have all of the forms/1099′s/w2s in time. I think I can figure it out pretty close, and I may try and file as early as I can.
    If I get “rejected” in the computer, I will mail it.

    The ironic part of this is, these people do not believe in “taxes”…..Yet “taxes” pay their health care and their food stamps.
    I think I want to purchase a used soapbox!

    You have been so very helpful. Too bad you are so far away….I know people needing an accountant/tax person. Is it possible to have out of state clients?

    Thanks again….

  103. Diane on Mon, 19th Dec 2011 6:19 pm
  104. Jan,
    Forgot to mention., no sweating bullets,…they have no idea about penalties and interest. They have done no research, and are still expecting my daughter to write some kind of magic letter, lying about where they lived, so they can have the $ they received.
    Diane

  105. Jan Roberg on Mon, 19th Dec 2011 8:41 pm
  106. Hi Diane,
    I’ll share my soapbox with you any day! I do take out of state clients (I specialize in multistate tax returns.) And, you do have a standing invitation to visit me if you’re ever in St. Louis, but if you need some professional help–I’m going to refer you to someone local. This link is to the National Association of Enrolled Agents website, it’s the locater page. You type in your zipcode and it will find who in your area is an EA like me. Here’s the link: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx?Token=
    Sometimes, especially with cases like yours, it’s best to have a friendly face and advocate that’s right there. I can’t say things like, “Do you want me to run them over with my car?” on the internet now can I? And, I’m kidding of course (really–I’m really kidding, in case anybody is monitoring this, I’m kidding!) The point is, it’s a good thing to be able to meet with somebody in person and be able to speak freely in confidence. Check out the NAEA site and interview people. If you don’t like the first one, try someone else.
    Back to business: Your daughter should not write a letter for the other grandparents. My gut reaction is that it will turn around and bite her in the behind. Besides, the IRS won’t accept a letter from your daughter–she’s a relative. The documentation must be a non-relative–at least back when I was doing EIC audits the IRS told me that was not acceptable–because relatives lie. (Now you can understand the IRS position there.) So even if she did write a letter, I’m not sure how much weight the IRS would give it. It’s still better for her not to write one though.
    Good luck, you’ve got a lovely mess to deal with and I certainly don’t envy you.

  107. Diane on Mon, 19th Dec 2011 9:11 pm
  108. Jan, CAN I PAY YOU FOR YOUR HELP? I would feel less guilty about being able to ask you these questions…..
    Other grandmother tried to do her taxes online, and it would not accept them 3 times….when she was trying to claim the baby…I am guessing she was answering the questions wrong. She went to one tax preparer office, and they would not do her return. She finally went to another office, and had them do the return.
    Will I be reprensenting myself against a tax office professsional? Don’t they have representation in case of an audit included with their service?
    Should I be looking for a tax person, from your link, sooner than later?
    Thanks again, again,
    Diane

  109. jennifer on Thu, 22nd Dec 2011 3:38 am
  110. ok so I was with my ex for 2yrs n we just broke up this month, he isnt the father of my son ( his father isnt around) but he did claim him on his taxes last yr..im not working so I dont file..but now he is still planning on claiming my son on his taxes this yr..is there anything i can do to stop him? if he does file am i entitle to the money? or is there anything i can do after he files?

  111. Jan Roberg on Thu, 22nd Dec 2011 2:46 pm
  112. First to Diana and anybody else who’d like to pay me for my bog posts–
    Gee thanks!. That’s so totally cool. I do run a business and I do like to get paid, but I also know that this particular page is more of a public service than anything else. That said, my blog does help drive business to my company and when people post to it, you make me stronger on the internet. So in reality, when you post a question to my website you’re helping my business grow so thank you for helping me.
    If I do happen to help you and you feel you’d like to pay–please pay if forward. Put some money in the Salvation Army bucket, or buy some Girl Scout cookies or something like that and we’ll call it even. Thanks.

  113. Jan Roberg on Thu, 22nd Dec 2011 3:23 pm
  114. Hi Jennifer,
    You and your ex just broke up last month. I’m missing some information here so I’m running on the fly–if I’ve got it way wrong, drop me a line and I’ll set it straight.
    Your ex is not the father of your son but he wants to claim him.Here’s the big question: are you two married? If you’re married, even though you two have split–he has a legal right to claim your son, even if he’s your son by a previous relationship.
    If you and your ex never married, then he has no legal right to claim your son this year in any way shape or form. If you were together for the entire year, he could probably claim the dependency exemption, but not EIC.
    You asked if there was anything you can do to stop him from claiming your son. If you are or were married, absolutely not.
    If you were never married, here’s the kicker, and I’m sorry but–you allowed him to claim your child. If he only claimed your son last year as “other” because he lived with him for the full 12 months and only claimed a dependency exemption–then all is cool. If he claimed your child as “son” and took an earned income credit, and you allowed it, well then you’re also complicit in EIC fraud.
    I know you weren’t thinking–hey let’s go commit fraud, I think most people aren’t thinking that way but that’s what it is. The reason I’m telling you this is not to scold you but make you keenly aware that hurting your ex could come back to bite you.
    So here’s your situation-you don’t file taxes at all–that doesn’t give you much power in this situation. If you had any income at all, you could file a return and set the whole audit thing into motion but that’s not really helpful to you or your child.
    You could file a form with the IRS saying that you know he’s cheating on his taxes by claiming a child that is not his son: http://robergtaxsolutions.com/2010/11/how-to-report-tax-fraud/
    You’ll never, ever, know what the IRS did about it, if anything. But, I highly recommend you don’t do this–because for 2010, the only scenario where your ex was cheating–was the one where you would be considered his accomplice–you don’t want to report him for that.
    You could sign over a form 8332 to your son’s real father, allowing him to claim your son as a dependent (not for EIC, just a dependent.) But that guy’s out of your life now and you’re setting him up for IRS notices fighting the ex boyfriend. (It would be pretty nasty of you to do that.)
    You also asked, are you entitled to the money if he does claim your son? Let me say it back to you the way the IRS would hear that question, because I’m certain that you don’t mean it the way it came across. (Even though I don’t work for the IRS, I’ve worked with them enough to know how they hear things.) My IRS ears heard: “So if I let my ex-boyfriend cheat on his taxes by claiming my kid, how much of that illegal money do I get?”
    I know that’s not what you meant. Obvioiusly that’s not what you meant, I just wanted to make you aware of how the IRS looks at these situations. You’re looking out for what’s best for your child because money your ex would receive from the IRS is really intended for the health and safety of your child.
    Right now though, you don’t have much on your side. Is your ex wrong to claim your kid? Yep. Is he way wrong if he claims EIC? Definitely! Does it help you or your child to fight it? I’m not seeing any benefit to you. I’m really sorry, but I’m not seeing any upside for you at all.

  115. Shelly Gill on Fri, 23rd Dec 2011 4:40 pm
  116. Our divorce was final in 2000. Our decree states that my ex-husband can claim our son in odd years if all child support is current. He is behind on all medical bills. We have joint custody with me having physical custody. He is telling me that he has talked with a lawyer and the IRS and has been advised that he has the right to claim him even though is he is not current. He has only been able to claim in 2 times in the past 10 years because of him not keeping his medical bills current. I feel that he is just bluffing me but he did do this one year before.

  117. Jan Roberg on Fri, 23rd Dec 2011 9:08 pm
  118. Hi Shelly,
    Thanks for your question. My advice here is that your husband needs a new attorney. He can talk to the IRS all he wants, but if he doesn’t listen to what they’re really telling him it won’t do any good.
    I’m not a lawyer. If someone got caught drunk driving and they called me to help them, well that would be pretty stupid (although I do know a good attorney I could refer them to.) But I myself would be worthless trying to help someone in the courtroom. On the other hand, I’m pretty darn good at this EIC stuff.
    Even though I wasn’t at that meeting, I can tell you what happened. They called the IRS and the IRS agent said that paying child support was totally irrelevant to the case. Your ex-husband interpretted that as meaning he didn’t have to pay child support and he still gets to claim the kids. WRONG!
    What the IRS agent meant was that your husband paying child support was irrellevant to him being able to claim the kids. Because there is a “condition” to his being able to claim the kids, it voids his ability to claim them on his tax return.
    In plain English: your divorce decree says he must be current in child support to claim the children on his tax return. The IRS says that any divorce decree that has a rule like that is a worthless piece of paper in tax court.
    So when you file your taxes, Shelly, you claim the exemptions, the child tax credits, head of household, and if you qualify–EIC. (Oh, and if they’re in daycare, you claim the child care credit too.) It’s all yours!
    The only way he could claim the dependency exemption (and the child tax credit) would be for you to sign the 8332 form which of course is not going to happen unless he brings all of his child support payments current, right? Please, do not sign an 8332 form unless all of the child support payments are current and the check has cleared the bank. And never sign away more than one year at a time.
    One final thing, just so you’ve got it. The rule I’m using is out of IRS Publication 17. Here’s a link to the 2011 edition: http://www.irs.gov/pub/irs-pdf/p17.pdf. The information I’m talking about is on page 29 starting near the bottom of the first column. It’s always nice to have the actual IRS document in hand it you’re arguing with attorneys. I’d wish you luck, but you don’t need it–your case is a slam dunk.

  119. Wendy on Tue, 27th Dec 2011 3:40 am
  120. Hi Jan,

    My question is sort of a repeat of some previous posts but I wanted to get absolute clarification on it. Ok, here goes. My ex & I were never married and we have an almost 10 year daughter. In May of 2009 we had a new court order put in place that states that unless I make at least $20k/year, my ex claims my daughter. Should I meet that stipulation, then I have to provide proof to him and even then it can only be every other year. Now I agreed to this b/c he threatened to take her for more visitation. Which neither my daughter nor I wanted. So I gave in. At this time, I had no idea why my daughter (at only 6.5) didn’t like going to her dads all of a sudden (he had just moved put of his parents house and in with his new fiancé). Fast forward to Aug 2009 just a few months later when my daughter was with him for her first full week of visitation. She called to check in with me to say hi and at the end of the conversation, she didn’t hang up the phone. I overheard her father interrogate her about things I might have said about him to her and when my daughter didn’t answer his questions the way he wanted, I heard him slap her across the face! I immediately called the police and she was removed from his home. Long story short, we are 2 years past that horrible ordeal and he has not learned anything from his court ordered anger management and what not. Because of all this, I do not abide by the court order that puts my daughter back into the same visitation schedule before the abuse was revealed. She only feels safe going for her visits to her grandmothers on Monday nights when she knows she won’t be left alone with him. So I have not filed any modifications in regards to the tax situation (or increased child support, which should have been reviewed & raised in March of this year [2011].) because my child’s safety, well being and peace of mind are obviously most important above all. I wouldn’t fight him for filing/claiming her for 2009 because I didn’t work but have been since Nov of 2010 and would like to claim her if possible. I never signed an 8332 form.

    I should also mention that even though I am in contempt for not letting her go to visitation with him (every other weekend, 2weeks in summer, etc…), he has NOT filed contempt charges against me (it’s been almost a year now since I cut off the visitation). He knows I want to make changes to the order and he also knows that he should be paying more child support.

    My daughter & I live with my mom (always have since she was born), I have sole, physical custody and he has only visitation (as previously stated). I claimed her every year till 2007 when I was laid off. I hope I’m not forgetting any info you may need.

    Thank you in advance for any help you can give me.

  121. Ammie on Tue, 27th Dec 2011 4:03 am
  122. Hi, My husband and I divorced in 2006 in Mississippi with 3 children. Our decree stated that I have “day to day care and control” of our children (physical custody) and joint “legal custody”. Also, states that I am to claim the youngest 2 (son & daughter) and he was to the claim the oldest (son) until all children become of age.
    I recently recieved a notice from IRS that my daughter was claimed by someone else. Can my ex claim her if I didnt give him permission? She lived with me for 6 months and him for 6 months yr. I have allowed him to claim my youngest son just being fair because he had been living with his dad, but now that he has went behind my back and claimed my daughter as well, I want to make sure that legally I can claim both my children in the future because the divorce decree states that I am to claim them. Thank you.

  123. Admin Roberg on Tue, 27th Dec 2011 3:07 pm
  124. This answer is for Wendy–
    You have custody, you live with your mom. Either you or your mom can claim your daughter, whichever works out the best for your family.
    The court order will not be uphelp by the IRS, only a form 8332 will allow him to claim her.

  125. Admin Roberg on Tue, 27th Dec 2011 3:29 pm
  126. This is for Ammie–
    Because you were divorced in 2006, you can use the pages of your divorce decree to prove that you have the right to claim your son and daughter. The key to this is that your divorce decree can’t have any conditions on it. It can’t say that you get to claim them if you do this or that (like paying support), it must just say you get to claim them.
    Since you do have equal custoday, technically either of you can claim the children for head of household and EIC purposes.
    Here’s the thing: you get the right to claim the dependency exemption–and with that the child tax credit. Because he does have equal custody of the children, the EIC and head of household status is up for grabs.
    Was he naughty to claim your daughter without permission? Yes. But can he be forgiven? It might be a good idea, and here’s why. 1. He’s the father of your children and he can’t be all bad because he has 50% custody–let’s face it, you woldn’t allow that if he was all bad. 2. You might gain more for your children by working together than by fighting.
    If you and your ex can be civil to each other for the sake of the kids (and I get the impression that you can otherwise I wouldn’t suggest it) you can work together on your taxes to see what’s the best overall outcome.
    Straight up–you should claim 2 exemptions, 2 child tax credits, 1 for head of household and 1 for EIC and 1 for child care credit if it applies. He should get 1 child for head of household and 1 for EIC and 1 for child care credit. That should be your standard for filing. From there, see what happens to your tax liability if you claim both kids or he claims both kids, what gives you the biggest bang for your buck. You take the difference and plug it into savings for your kids to go to college.
    Of course, this only works for exes who get along and are both in tune to what’s best for the kids. I would have you use two different tax people (in case you have a conflict of interest issue.) Very few people have exact 50/50 custody, but for those who do, this can be a big help.

  127. Chris on Tue, 27th Dec 2011 4:54 pm
  128. I have to say, I agree with your advice, but the IRS isn’t really as helpful as you might say. We’ve “won” the audit war for 5 years, and my wifes ex is STILL claiming the child each and every year. When we call the IRS, they tell us that they can’t use historical information, because custody can change, and we get an audit notice every single year. We send in mountains of paperwork to prove our case. We have no idea what, if any, penalty is applied to him, but he’s never mentioned it to us once, and our relationship is amicable. My fear is that the IRS might have been giving both of us the benefit.

    Now the IRS has us in an “expanded” audit, where we must provide even MORE details and paperwork, school records, calendar dates, etc, even though we have submitted everything successfully for years. The IRS claims they can’t intervene at all, they can’t provide us any information on his return status. They tell us we simply have to contact her ex, but we are put into the position of having to police someone elses tax returns. I find this unacceptable.

    If you have any advice, would love to hear it. I’m probably going to contact my state and federal congresspersons as well, because they may have the ear of someone higher up at the IRS.

    Thanks.

  129. Jan Roberg on Tue, 27th Dec 2011 5:38 pm
  130. Hi Chris,
    Thanks for your post. I can’t believe you’ve had to battle the same issue over and over again for five years. I take that back, I can believe it, but you’re right, it’s unacceptable.
    Here’s the catch–because of all the privacy laws, they can’t tell you anything. It’s a little crazy, but you’d think he’d stop. The fines and penalties are pretty servere. Is it possible that it’s someone else who is claiming your child? You’d think that since the ex has an amicable relationship with your family that it might come up in conversation? That’s puzzling.
    My only thought is that after 5 years the IRS is a little tired of policing this case, hence the expanded audit. Usually, once they determine a fraud they flag the social security number and the person is not allowed to claim EIC any more. If there is no EIC involved, then that could be the reason they’re not flagging it. (EIC is worth big money, a regular exemption, not so much.)
    I wish I had a magic answer for you, but you know I don’t. I’m sorry. You’re going to have to complete that paperwork and send it in once again. (And from the sound of your story, you may be doing this for a long time.)
    It might be worth talking it over with the ex. It could be–it wasn’t him. It could be–his little passive aggressive way at digging at your wife. Or maybe he honestly thinks he’s supposed to claim the child. (You’d think that after 5 years, he’d figure it out but maybe he’s slow.)
    But I do hope that everybody reads your post because it’s important to know that these things take a lot of time to solve and even if you win, you may still have to keep fighting. Sorry yours is dragging out so long.

  131. Mandy on Wed, 28th Dec 2011 8:51 pm
  132. Hi Jan,
    Thank you so much for this message board! You Rock. Some background: My divorce finalized 11/2008 and we share three kids.

    Question #1:
    In November 2007, a temporary child support order was put in place for my ex to start paying child support while we went through the divorce process (a year after he left without helping at all in the meantime). The order does not specifically say my ex can claim the kids in 2007, yet his child support calculations were based on his filing with the 3 kids, starting November 2007. He started having 42% visitation at this time. So, up to November 2007, I had the kids 100% of the time and he paid us no support. Since the order doesn’t specifically say he could claim the kids on his returns (and it doesn’t say I could or could not either), I filed and claimed the kids in 2007. Was this within IRS rules?

    Question #2:
    Our Final Decree (11/2008) states my ex can claim the three kids in 2008, then I can in 2009, alternating years thereafter. Beginning with this November 2008 order, we started sharing 50/50 custody (yet prior to November 2008 all three kids were with me 58% of the time, he had visitation which equalled 42%). Honestly, I thought this was unfair for him to get the 2008 filing since he wasn’t paying the ordered child support and the kids were with me >50% of 2008. I needed money to support us, and I ended up claiming the kids in 2008 out of desperation. I spoke with an accountant who said it would be okay. Was I within IRS rules to claim them in 2008?

  133. Jan Roberg on Thu, 29th Dec 2011 12:55 am
  134. Hi Mandy,
    Thanks for your post, you’ve got some good questions.
    Number 1–Back in 2007, you weren’t officially divorced yet, but from your post, I can tell that he wasn’t living with you for the last 6 months of the year (that’s important–those last 6 months of the year.) Because of that, you can claim head of household and claim the kids–no problem. You’re good for 2007. Even if you weren’t, it’s too late for him to try to make a claim for 2007, so again, you’re good.
    Number 2–now we’re talking about 2008. The divorce decree was in effect. For 2008 divorces, if the decree says that your ex may claim the kids–it’s only good if there are no conditions. I can’t tell from your post if there are any or not. You need to look at the decree–does it say he gets to claim the kids if he pays child support? That’s a condition. Or, does it just say he gets to claim the kids period. That would be no conditions.
    If there are no conditions, he gets the exemption (and the child tax credit with it.) If there are conditions (like paying child suport) then even if he pays child support, he can’t claim the kids without you signing an 8332 form. (Which of course you only sign if he pays up, right?)
    Now for 2008, even if he really does get to claim the kids, you can still claim head of household and EIC because you had them for over 50% of the time. (You did a good job of computing that out.)
    Okay, here’s one more thing–has your ex said anything about it? The reason I’m asking is, we’re talking about 2008–if he doesn’t make a claim by April 17, 2012 he’s SOL. A person only has three years to claim a refund so if he hasn’t filed any paperwork yet, I’d keep quiet about it. I know that sounds horrible and sneaky and you’re trying to be on the up and up–but he’s had three years to try to fix it. Snooze you lose. (Maybe I’d feel nicer to him if he’d paid his child support.)
    So for 2008–bottom line-check for conditions, if no conditions–I’d keep quiet if possible. Worst case scenario, you still keep head of household and EIC.

  135. jennifer on Thu, 29th Dec 2011 7:17 am
  136. Wow i really didnt think that was fraud at all..i thought that if you supported that child for the year then you could claim that child..but im really not sure if he claimed “other” or “son” last yr n i would not want to get myself in trouble because, well, that would just be dumb. but thank you so much for your help

  137. Jan Roberg on Thu, 29th Dec 2011 3:17 pm
  138. @ Jennifer,
    You’re welcome. That’s one of the problems with EIC though, is that it’s so complicated, people can do the wrong thing and not know it’s wrong. And–there are lots of paid tax preparers who get it wrong too. The laws changed a few years back–what used to be perfectly legal is now illegal. I think lots of people of made the same mistake.

  139. Mandy on Thu, 29th Dec 2011 10:31 pm
  140. Jan, I hope you realize how much you’re helping those of us out there worrying and fretting over issues that are complicated!!

    Our decree has no conditions, so 2008 is clear he is to get them as dependants. We have subsequent orders that become more clear going forward, but alas I am stuck for 2008.

    You said “if he doesn’t make a claim by April 17, 2012 he’s SOL. I know that sounds horrible and sneaky and you’re trying to be on the up and up–but he’s had three years to try to fix it. Snooze you lose. (Maybe I’d feel nicer to him if he’d paid his child support.)” —- which I definately appreciate, as he owes me over $20k child support arrears!

    Now… what if he isn’t due a refund but actually has to pay (even when including the three kids as excemptions) in 2008? Does he still have the same deadline to claim the kids or to fight my filing? He hasn’t filed taxes since 2005 so I’m hopeful he will miss the April deadline as well. He does know that I filed in 2008 (via some court paperwork), yet just keeps “claiming” he’s going to take me to court and force me to re-file.

    Also, what about if 2011 is his year to claim them again, can I still be Head of Household? or who would claim head of household? We currently have 50/50. However, I made sure our most recent court order that gives us 50/50 also says “primary residence to remain with the mother”. Does this help me file as HoH every year unless it is changed?

  141. Jan Roberg on Fri, 30th Dec 2011 3:50 pm
  142. Hi Mandy,
    Here’s my thoughts, hope this helps.
    About 2011—You have 50/50 custody on paper, but where do the children sleep? That’s going to be the crucial piece of information in the puzzle. Lots of families have “50/50 custody” on paper, but in reality they spend every other weekend with the father and Wednesday nights (at least that’s the standard in my neighborhood.) If your case is like that then clearly you claim Head of Household. Your documents also say “primary residence to remain with the mother” which sort of tells me that you have them for more than 50% of the time. If you’re at all worried about losing Head of Household status, keep a calendar of which nights your children slept in your house. Sounds dumb but a client of another tax person I know did this—not really to claim head of household, he just was making sure he knew which nights he had his kids—and it wound up being the evidence that the IRS accepted to prove head of household when his return got challenged. Bottom line, even though you lose the exemption and child tax credit for 2011 I’m pretty sure you’ve got head of household (and EIC if you qualify.)

    Now for 2008. If claiming the children were to give him a refund—then if he filed after April 17th it would be too late and it wouldn’t do him any good, the refund would automatically be rejected. But you’re saying that he owes—that’s different because he is legally entitled to claim the children as exemptions which would entitle him to claiming the exemptions and the child tax credit. You still get to keep head of household (and EIC if there was any.) But here’s the catch—if he files, claiming your children it will raise a red flag at the IRS and he’s going to have to provide documentation proving that he is entitled to do so. (Yes, he’s got it, but he’s going to have to work to keep it.)

    So, here’s what I would do—this is “Jan the person advice” not “Jan the EA” advice. I’d start a savings account so that you start saving up enough money to pay back the excess tax you received for claiming the kids. (Win/win—if you have to pay it back, you’ve got it, if you don’t pay it back you’ve got a savings account.) Talk to your ex—how much does he get off his taxes if he claims the kids? Negotiate—okay, you’ll deduct that from the child support he owes you—clearly it’s less than $20,000 and clearly it’s less than what you’d have to pay in penalties and interest. I figure, a guy who doesn’t pay his child support—well reducing something he wasn’t paying anyway isn’t really hurting you.

    If he won’t deal, you’re going to eventually get stuck paying back that money. The IRS really doesn’t want to deal with your 2008 tax return so if you two can settle this without their interference you’re actually doing your country a favor. (I’m serious about that.)

  143. ree on Fri, 30th Dec 2011 3:59 pm
  144. I have a question my ex receives welfare for 2 of our children we have been separated for 8 years we have joint custody of them and share 50/50 visitation and i pay child support since he is receiving aid would i be able to claim them every year ? and what if he claims them would i be able to fight anyrhing owed since i pay child support? he is disabled and and relies on state assistance.. i would appreciate sum feed back thanks !!

  145. Mandy on Fri, 30th Dec 2011 6:20 pm
  146. Thanks again, Jan.

    I re-worked my 2008 return to see the difference if I don’t use kids as exemptions, only as HoH and EIC – and I’d have to pay back about $1600 in refund overpayment – plus penalties and interest, whatever that amount may be?

    I also realized today that because his child support arrears are being managed through DCSS (State of California Child Supp Serv), any refund he gets on his tax returns would be intercepted and paid to me anyways. Duh! How could I forget.

    So I think I will wait and see what happens. If I’m forced to refile I will have to pay back a small amount for 2008, and then if he files before April, claiming the kids & is due a refund, I will get that amount. If he ends up owing… then I’ll just save up some money and I will be okay with paying back the $1600 + fees.

    He’s about to loose his drivers license for non-payment of child support (it takes like 2 years for this collection method to finally kick in, in California). I wonder how he’ll be able to maintain 50/50 custody if he can’t drive?

    Thanks Jan, really! Your passion for helping in your trade shows!

  147. Jan Roberg on Fri, 30th Dec 2011 7:41 pm
  148. @Mandy,
    Add $400 for late payment penalty and maybe $200 for interest depending upon when the issue is settled. That should get you in the ballpark. (The rate is currently 3%.) Assume you’d have to pay, but I’d ask for an “abatement” of the penalty on the grounds that you had never filed late or prepared in incorrect return before. The IRS may be a little hard nosed about it when you ask, but they often will abate a first time penalty. It’s always worth asking, worst they can do is say no. You won’t get out of having to pay interest though.
    One more thing, if you do negotiate with the ex and he agrees not to claim the kids in exchange for reducing the child support he owes, make him sign an 8332 form for 2008 before you sign anything releasing him of any child support payment. You do want to cover your behind.
    Good luck and thanks for your kind comments. Hope you have a very happy and successful new year!

  149. Jan Roberg on Fri, 30th Dec 2011 9:48 pm
  150. Hi Ree,
    Thanks for your post. The first issue here is “support” that’s where you’re coming from. The rules here a different for claiming an exemption for a “qualifying child” than they are for claiming a “qualifying relative”—In order to claim a qualifying relative (for example: let’s say your ex had his brother living with him and wanted to claim him as a dependent) to claim a qualifying relative you have to provide more than 50% of that person’s support. (Paying for food, clothing, housing, etc.)

    But, your ex is claiming qualifying children—the rule is a little different—for a qualifying child, the child must not pay for more than 50% of his support. Did you get that? It’s a little different. I used to teach this stuff in a tax preparer’s class and this is what trips everybody up. As long as the children aren’t working someplace and making more than 50% of what their upkeep costs, your ex can still claim them as qualifying children on his tax return even though you are paying child support.

    So, you won’t win anything on the support issue, but you’re not out of it yet. First, if the only income your ex has is welfare and the child support that you pay, then he doesn’t need to file a tax return—he has no taxable income. He won’t qualify for an earned income credit because he has no earned income. There is no reason for him to file and no reason for him to claim the children.

    If he does have some taxable income, then you have one of those “tie-breaker” situations. The first rule of a tie-breaker is the parent always wins. Since both of you are the parents, we have to move on to rule number 2. The parent that the child lived with for the longer period of time will claim the child. You have 50/50 custody—if it’s actually 50/50 and your children slept at your house as often as they slept at their fathers, then you go to the next rule. 3. If the children lived with each parent an equal amount of time, the parent with the higher adjusted gross income for the year will get to claim the child.

    So if your ex has your children for over half the time, he gets to claim the kids, if not, then you do because I’m assuming you have the higher income, you must or your wouldn’t be paying child support. But there’s one more thing I need to warn you about.

    You’ve got a non-tax issue that I can’t help you with but you need to be aware of it. Your husband is getting welfare—or at least some type of disability payment—and part of his payment (or maybe all of it) could be related to the fact that he has custody of the children. That’s something to consider as you get ready to file. Now you claiming an exemption and child tax credit should not hurt his ability to receive welfare for the children, but if you claimed them for head of household status (and EIC if applicable) then that could affect his welfare so do keep that in mind. If his welfare gets reduced, then would you wind up having to pay more in child support? Would it harm your children? These are questions that you need the answers to before claiming head of household or EIC.

    If you go the route of just claiming the exemption and the child tax credit, it’s a good idea to have your ex sign an 8332 form to cover both of your backsides. For you, it prevents him from going back later and claiming them for the year. For him, it’s written proof the he’s the custodial parent but he’s just releasing the exemption to you for tax purposes in case something were to come up with the welfare department.

    I didn’t mean to give such a long answer to a little question. Sorry about that, but I figured you needed to see the whole picture. Sometimes its the things that seem easy that get really complicated.

  151. Jan Roberg on Mon, 2nd Jan 2012 2:50 am
  152. Hi Everyone,
    Thanks for making this post more of an interactive site. I think your questions are great and so many people have unique situations I think everyone who asks a question is helping someone else besides themselves. I try really hard to answer your questions as quickly as possible–sometimes I’ve had to look things up and a couple of times I’ve even called the IRS to get some clarification but I’ve usually gotten back to you with a day or two.
    With tax season coming up, I might not be as fast with my responses. I’ll do my best, and I will answer every question, but my turn around might be a little slower. I just thought I should warn you in case you don’t an answer from me right away.
    Thanks again for visiting my site.

  153. Jan Roberg on Mon, 2nd Jan 2012 6:45 pm
  154. This is for Kendra,
    I deleted your question because it had your last name on it and I thought it best that we not post that.

    Here’s your question: I was wondering what I should do when I let one of my family members claim my child last year and she didn’t pay me my money for that child. And what can I do to prevent her from trying to claim him this year without my permission please help me.

    I’m making the assumption that the family member that you allowed to claim your child was legally entitled to do so. Your child lived with that person for more than half the year, and that person provided support and all the other requirements that would allow that person to claim your child on a tax return. Right? So if that person legally claimed your child—then what do you mean by “she didn’t pay me my money for that child?” If your family member truly was the custodian, and support giver well then you have no right to the money. She was claiming your child because she was the main support.

    Let’s look at the other side—what if that wasn’t the case and your relative really didn’t have a legal right to claim your child, but the two of you “conspired to defraud the United States government” to claim EIC and then your co-conspirator stiffed you. That sounds really ugly doesn’t it? I’m sure that’s not how you meant it, but it’s really important to see how things look to the IRS. I cannot stress that enough. The IRS estimates that 25% of all EIC claims are fraud, and if they think you committed fraud, they will not be nice about it. (To put it mildly.) But this is why I decided to delete your name. I’m pretty sure that you didn’t mean it the way it sounded, but if the IRS were looking for someone to investigate well here’s Kendra and she just confessed on the internet!

    I figure you came to my website for help, not to get into trouble with the IRS. And if you were really trying to do wrong, you wouldn’t be posting it on the internet.

    But here’s what I’m guessing really happened: you and your relative were living together and she really was helping you raise your child. And she really could legally claim your child on her tax return as long as you didn’t. Being extremely smart—you two worked out your taxes together and realized that it would be better for your child if your relative did claim her and there would be more money in your household for you two together to help in the care and feeding of your child. Nod your head yes, sweetheart, this is the story and you’d better stick to it.

    Anyway, after you two filed your taxes, your relative and you had a falling out and instead of using the EIC money to improve the life of your child-which is the only reason you would have agreed to let her claim your child in the first place, she took off with it. You’re concerned that she might try to claim your child again (which this time would be illegal.) How can you prevent it?

    The classic answer is—file your taxes first. That’s easier said than done. Also, she might still beat you to it. If she does claim your child, you’ll have to go through the process I outlined above in the main blog post–file your tax return by mail, wait it out, etc..

    Even if your relative has a legal right to claim your child again this year, because of the IRS tie-breaker rules, the tie goes to the parent so you win the case.
    If she has no legal right to claim your child—you may have to explain how it is that she claimed the child last year without you filing a protest back then. You need to be prepared for the potential questions you’re going to face. This brings us back to having you file first–it’s the easy solution. (Sorry—telling you to file first is lame, but it’s your best shot.)

    And of course, you will never let anyone claim your children ever again. You learned a very valuable lesson the hard way.

  155. Cierra on Mon, 2nd Jan 2012 7:28 pm
  156. First off, Im only 17 and I need some advice. Dec.4, 2010 I had my son and we stay with my mom. Last year, As soon as tax time comes around his dad wanted to use his ss card but I didnt let him. So he went down to the SS building and got his card and Later I found out that he let his mom file my son without my permisson and me or my mom didnt get anything ! What should I do? This year On the 12th Ill be 18 and Im filing my own son but i dont to have to rush and fight just to beat him to it. My child lives with me, he go with his dad from time to time but this is where he stay. His dad dont understand that, he thinks just because thats his son, he suppose to file him and get everything. Is there some type of way I can put a lock on his ss Number because I dont want no one else filing him but me!

  157. Jan Roberg on Mon, 2nd Jan 2012 8:04 pm
  158. Hi Cierra,
    It sounds like you have custody and you should claim your child. I wish there was a way to put a lock on a social security number but unfortunately, there isn’t. Sometimes, if someone has fraudulently claimed EIC, the IRS will make it so that they can’t do it again, but it seems like it’s rare.
    If your son’s father claims him again, you’ll have to go through the process described above. It’s long and slow, but you’re the custodial parent so eventually you’ll win. Good luck.

  159. Sandi on Tue, 3rd Jan 2012 12:35 am
  160. I need to know, if it’s alright for my ex-Husband to claim our children on his tax return when they aren’t living with him! They are living with me & they have been, since we got divorce! I have full custody… Is this right? because “I” don’t think it’s right! Please tell me if it’s wrong for him to claim them! also, I don’t work right now & I never gave him permission to claim them! Is THIS what he’s doing right? If he’s claiming the children, isn’t he suppose to give me what he’s getting from them? Also, my 2 children are 9 (my son) & 18 (my daughter) Thank You.

  161. Jan Roberg on Tue, 3rd Jan 2012 2:26 am
  162. Hi Sandi,
    I don’t have all the information I need but maybe this will help you.
    1. Since you have custody, you are entitled to claim head of household and the Earned income credit if you qualify for that.
    2. If your divorce was in 2009 or later, your ex cannot claim your children unless you sign a form 8332 allowing him to do it.
    3. If you divorce was in 2008 or before, AND if you divorce decree says that he can claim you children, AND there are no conditions to it–like having to pay child support, then your ex may claim the children for the child tax credit and for the exemption but not for head of household or EIC.
    You might want to check out my post on splitting an exemption: http://robergtaxsolutions.com/?s=splitting+an+exemption

    You asked a good question–if he claims the children, isn’t he supposed to give me what he gets for them? I get asked that question a lot. The short answer: No. If you’re divorced and you’ve got a decree and he’s been given that right by the court–no, you don’t get anything.

    Now–I often suggest that couples who can work together for the “good of the child” and figure out what’s best–and obeying all the IRS rules–because really that’s important (I’m serious, not just lip service) but some couples can work together and split the refund. Those couples are rare.

    But, if he can legally claim your children, then he has no obligation to give you the money. The key word here is “legally”. If he can’t legally claim them–fight back and file the childrens exemptions for yourself.

  163. Denisse Montalvo on Tue, 3rd Jan 2012 11:20 pm
  164. I’ve read a lot of these comments and it’s all been very helpful… What I would like to know though if someone could please help me. I’m a 22 year old mother of a 2 year old baby girl. My baby’s father has been very miserable in helping out.. the only things he’s helped out has been diapers, wipes, milk… he’s only bought her clothes twice her whole life. Everything else has been on me. It’s been a tough road for me, my baby’s father last year asked for money from income but I didn’t give him any. This year he is asking for half… but why should I when he hasn’t helped me the way he should. My question is… Do I really need to give him something if there’s really no proof he’s supported me the way he should? I mean diapers wipes and milk is only like what “100″ a month.. maybe not even that much cause he only buys that stuff once a week…. and my daughter is always with me… she’s recently started staying more often about a month ago… maybe once a or twice a week… that is it though… but just becuase of that I don’t think it gives him the right to try to take money away when I’m in need of it most. Please help someone… I’ve been stressing over that and other financial problems. Please…..

  165. Jan Roberg on Wed, 4th Jan 2012 2:54 am
  166. Hi Denisse,
    I hear you. Let me make sure that I understand everything so that I get it right, okay? Your daughter lives with you and you provide most of her support, (except for some diapers, milk, and wipes–which the IRS doesn’t even count anyway.) But bottom line–she lives with you and you are the custodial parent. Yes or no?

    Your baby’s daddy is not now and never was married to you? Yes or no?

    Your baby’s daddy does not live with you now and hasn’t lived with you for over half of 2011? Yes or no?

    I’m guessing that you’re saying “yes” to all my questions. If so, then you do not owe the baby’s father anything. End of story.

    But I can hear him now, “But I paid for the milk and the diapers and wipes, I should get something.” Sorry, no. He’s doing his duty towards his child–and minimum duty at that. I once had a guy try to claim EIC on different kids with different moms on the grounds that he “bought each of the kids a birthday present every year.” No dice.

    EIC is only for the custodial parent. You may chose to release the exemption and the child tax credit (they go together) but you can never release the EIC to someone who does not have custody of the child. Period, end of story.

    Diapers and wipes do not make for an EIC claim. (Sorry, I’m on my soapbox. I’ll calm down.)

    Seriously, you do what’s right by the law and right by your child. I don’t see anything in the tax code that says you need to hand over your refund. If I’ve got my facts about your case wrong, let me know and I’ll make adjustments, but I’m thinking you’re okay.

  167. Wendy on Wed, 4th Jan 2012 3:20 am
  168. Hi again Jan!

    Just wanted to say that your advice to me was so very helpful. I’m so glad I found this site. I’ve been trying to get info on my particular situation for so long now but it’s hard on a budget to get an accountant or tax attorney to meet with you without a down payment on a meeting.

    I also have two more questions for you. The first is that I was reading another answer you gave to someone else about conditions in a divorce decree. I don’t have a divorce decree as my daughters father & I were never married but in our court document there is a condition that states that I can only claim my child if I’ve made at least $20k for that particular year. Is this acceptable? Can I use this as a backup standing if we go back to court and the court says that I have to let him claim my daughter? Is this a substantial reason that I can use in my favor because there should be no conditions listed?

    Secondly, even though you have stated that I have every right to claim my daughter b/c I never signed an 8332 form, can you explain to me how both he & I can still claim her by splitting the exemption, EIC and child care credit (which I don’t think I am eligible for anymore anyway since my daughter is no longer in daycare – she’s 10 – but I used to claim that while I was employed full time and she was in daycare). I’m just trying to go with the less troublesome route. How do I even know if he claimed EIC or if he can? Is there an income limit on that?

    Thanks again for all your great advice & help!!!! It is SO appreciated more than you know!!!!

  169. Em on Wed, 4th Jan 2012 2:51 pm
  170. If I have a court order with my sons father that he will be claiming our son on taxes, we are not married nor live together, but I am the prmary guardian and our son lives with me more than half the year. Does he still get to claim him? How Would I go about this. I get child support but it does not cover half the cost of taking care of our son, for instance daycare, now thats more then my rent is a month. With my taxes I get back frrom claiming my son I usually save that money and use it for school. But now that I dont get to claim my son its going to be a harder struggle. Sometimes I feel like my sons father is wanting that. Anyone have any advice for me.

  171. Tzeitel on Wed, 4th Jan 2012 6:46 pm
  172. My husband & his ex-wife have a divorce decree that was issued in 2000, at the time they had 3 minor children. The papers state that in 2000 & 2001 my husband was to claim two of the three children and then in 2002 his ex would claim two and they are to alternate there after. Two of the three children are now no longer children (one is completely on his own, the other is 20 and in college and we claim him in order for him to receive tuition remission), the third child is 15 and it is our year to claim her. The ex has now told my husband that she is going to claim her as we are claiming the 20 year old (so he can go to college for free). They have a shared parenting agreement and he pays over $1000 per month in child support (the ex just started working in November). What can we do? Any advice?

  173. Denisse Montalvo on Wed, 4th Jan 2012 6:57 pm
  174. Hi Jan,

    Yes my daughter lives with me and I provide mostly everything for her. I have never been married to him. There was a time (year of 2010) I lived with him and his parents for about 4 months, that’s it though.. I am so much relieved that I found your site and feel so much better. I actually currently work at a CPA firm and have already requested my boss to give me those papers where I can make my daughter only dependent on me. I thank you so much! Yesterday he was threatening me with so much I felt horrible… but reading all of these comments has really boosted my confidence and never again will I be intimidated by him. I guess I was worried because he just recently graduated from the police academy… so I felt he might have more knowledge…
    Again Jan thank you so much for your advice!!!! You’ve really made my day :)

  175. Jan Roberg on Thu, 5th Jan 2012 1:57 am
  176. Hi Wendy,
    First, let me say that I’m not a lawyer and it’s against the law for me to give legal advice, I’m an enrolled agent and I’m only allowed to give tax advice. So—even though the IRS might not care about your court order, the judge in your state probably does. If I can find an attorney to make a post here I will, because a lot of people have “court order” questions. But I’m not allowed to say anything about that.
    But, I can talk a whole lot about IRS stuff. And here I go…
    Okay—you weren’t even married so as far as the IRS is concerned, your court order—which even if you were married is a condition—does not count in IRS eyes. But—I don’t want to have to come visit you in jail for defying a court order. (I’m sure you’ve be great to meet for coffee or something, but you’d be pretty ticked at me if you were in prison so let’s not go there.)
    What you can do—and this would be obeying the court order and helping yourself—that’s the bit about splitting the exemption. Here’s my post on that: http://robergtaxsolutions.com/?s=splitting+an+exemption
    Bottom line—you sign a form called an 8332, here’s a link for that: http://www.irs.gov/pub/irs-pdf/f8332.pdf Only sign for one year, never sign the forever part.
    When you sign that form, it allows the dad to claim your child in his tax return for the exemption and for the child tax credit. You, the custodial parent, keep the child for purposes of claiming the head of household filing status and the Earned Income Credit. Since you only have to sign over the exemption if you make less than $20,000—you’ll qualify for the earned income credit. If your daughter were still in daycare, you’ll also get to keep the child care credit too.
    Your ex may not claim EIC because he is not the custodial parent. Your court order to give him the exemption ONLY GIVES HIM THE EXEMPTION, your court order cannot give your ex the Earned Income Credit—that’s not legal advice, that’s straight tax regulation.
    There are income limits to EIC. I just posted this year’s limits in another blog post. Here’s a link to that: http://robergtaxsolutions.com/2011/12/eight-basic-rules-to-qualify-for-the-earned-income-tax-credit/ The income figures are down near the bottom.
    Thanks for coming back.

  177. Jan Roberg on Thu, 5th Jan 2012 2:00 am
  178. One more thing for Wendy,
    Sorry, forgot to add this part–How can you tell if he claimed EIC or not? You can’t. He can tell you, but about the only way you’ll know otherwise is if you try to claim it and your return gets rejected when you e-file. If this happens, then you paper file like I wrote about in the main post.
    It’s a pain in the butt but you’ll win in the end. (Okay, it’s late, the pun was not intended.) Sorry.

  179. Jan Roberg on Thu, 5th Jan 2012 2:21 am
  180. Hi Em,
    If you scroll up and read Wendy’s post it’s almost the exact same answer. (You’ve got a son, she’s got a daughter, but pretty much the rest is the same. Your son’s father may only claim the EXEMPTION with that court order. With the exemption goes the CHILD TAX CREDIT. But you are the custodial parent—you are entitled to HEAD OF HOUSEHOLD TAX STATUS and the EARNED INCOME CREDIT.
    I’m not putting that in caps to scream at you but just to make a point. If your ex is just doing this because he wants to make your struggle harder. I will be happy to scream at him: HEY DIRTBAG, LEAVE EM ALONE! That probably didn’t help you much but it did make me feel better. And I’m sorry for calling your ex a dirtbag, your son is probably adorable so the guy did something right. (I’m not allowed to give legal advice but there’s no law against my calling people names.)
    Bottom line, even with a court order, he can’t take everything away from you.

  181. Jan Roberg on Thu, 5th Jan 2012 2:47 am
  182. Hi Tzeitel,
    First, I have a question for you. How is the custodial parent? Although the agreement is shared parenting—when the kids go to sleep at night, where do they spend the most nights? I’m assuming the college student sleeps in the dorm but spends more nights with the mom than you and your husband. I’m guessing the 15 year old lives with the mom also. If that’s not the case—then reverse my answer, but I’m pretty sure they live with her.
    So, you have a divorce decree that lets you claim both children every other year. (a pre-2009 divorce decree with conditions of child support so that’s technically worthless, but up until now you’ve been following the decree.
    Here’s my question: what happened last year? The college aged child can still be claimed. You claimed him last year. Did you also claim the 15 year old? That would have you claiming 2 and her claiming 0. Or, last year, was it her turn to claim two but you claimed one? So now she’s balancing it out claiming one again? So it sounds like it’s just being fair.
    From where I’m sitting—it looks to me like a fair solution would be for you and your husband to claim the college student until graduation and the ex-wife to claim the younger one. Then, when the younger one goes to college—if free tuition is still an option, then you should claim the younger. Now technically, you should alternate the younger one every year, but if the trade off is free tuition, than any right minded individual would release the exemption for that. My daughter’s a college sophomore and I will gladly let you claim her for an exemption exchange for free tuition. (Oops, that’s illegal, sorry, I run a clean website.)
    Okay, but here’s something else to consider—once again, claiming an exemption is not the same as claiming head of household or EIC. You and your husband qualify for the married filing jointly tax status (that’s good for you.) You probably do not qualify for an Earned Income Credit. The ex-wife, who probably will qualify for EIC because she’s now working and might benefit from the head of household filing status could let you claim both exemptions and she could take the head of household filing status and the Earned Income Credit. This would pretty much be a win/win for both of you. The only “controversy” I can see (of course I don’t see your whole picture so there may be more issues that I don’t know about) but the controversy I see is the child tax credit you’d get on the 15 year old—that’s $1000. There’s no child tax credit on the college student.
    Anyway, that’s a compromise that might work for both of you. It’s at least worth checking out.

  183. Jan Roberg on Thu, 5th Jan 2012 2:48 am
  184. @Tzietzel–I meant WHO is the custodial parent? I wasn’t asking about her health. Sorry.

  185. Jan Roberg on Thu, 5th Jan 2012 2:52 am
  186. @Denisse,
    And you’ve made this whole blog thing worthwhile for me! And especially for you, this is from an old college roommate’s mom, don’t ever forget these words:

    “You’re bright, you’re beautiful, and you’re talented and you deserve better!”

    Good luck and don’t let the bullies get you down!

  187. Tzeitel on Thu, 5th Jan 2012 1:16 pm
  188. Hi Jan,

    The divorce papers are from 2000 but there are no conditions. The papers only address minor children and not those that are of age. The papers state that the parents are to alternate minor children. This will make the second year that we have claimed the college age child (so he could receive the tuition remission). She has managed to only work the bare minimum each year to receive the EIC and then quits but because we itemize our deductions and she has nothing that would qualify for itemization, she has filed first and we have not been able to claim the 15 year old. Really we are just completely frustrated with her not following the decree, which we have been trying to do. As far as where the child lives, last year the mother was evicted and we took in all the children for about 5 months, not to mention the visitation, which is yes Wednesday and every other weekend.

    Thanks for your help!

  189. Jan Roberg on Thu, 5th Jan 2012 4:17 pm
  190. Hi Tzietzel,
    It’s important that your divorce decree has not conditions—because that means you can use the divorce decree as proof that you may claim the exemption and will not need a form 8332 from the mom. As to alternating the “minor” children. I would check with an attorney on that issue because although the college age child is over 18—he is still an exemption as far as the IRS is concerned.
    If you had custody for 5 months—that doesn’t qualify as over half the year. But—you also had the children every Wednesday and every other weekend. It’s probably worth your while to sit down with a calendar and “count days” because you may just have the “over half the year” requirement. But—even if you do—how much good does it do you?
    You really need to look at the battle—what do you gain? What do you lose? What will be the best for the children? Think about the long term and the short term consequences. Here’s two really hard questions you need to ask yourself:
    1. Will the kids be better off if I stand my ground an not let the mom claim them on her tax return? If yes, how will those kids be better off?
    2. Am I just trying to punish my husband’s ex-wife because I don’t think she’s been the most responsible person?
    Only you can answer those questions. If the answer to number one is yes, then you should be able to answer how. If the answer to number 1 is no, then why are you fighting? I’ll let you decide about question number 2.

  191. Ginger on Thu, 5th Jan 2012 11:39 pm
  192. I am in the middle of custody battle with my ex. We split up in october 2009. We have2 kids together. On october 13 2011 the judge signed him temporary custody which we go back to court the 12th of jabuary but anyways we had an agreement to switch on and off each year to claim the kids but last year was supposed tp be the year i claimed and he claimed behind my back. Even know right now he has tempory custoday and they lived with me from january to october 2011. They just established paternity he is not on the birth certificates. Chow can i stop him from claiming them again?

  193. Jan Roberg on Fri, 6th Jan 2012 2:21 am
  194. Hi Ginger,
    Custody battles are no fun. Good luck.
    Your last question is the most important so I’m answering that one first, you said, How can I stop him from claiming my children again? You’re going to hate this answer—You can’t. You can fight it, you can go after him all you want and you’ll probably win—but there’s nothing to stop him from trying again. If you scroll up and read Chris’s letter, you’ll see how he’s had to battle his wife’s ex for 5 years—sadly that’s true. He’s not alone.
    But that doesn’t mean you’ve lost! It just means it will be a pain in the behind. So, for 2011 you had custody for more than half the year so technically you have the right to claim the kids. Also, since you had full custody in 2010 then you may go back and file for 2010—don’t do it unless you feel confident you are in the right. Did the children live with you? Did you support them? Did they go to school in the neighborhood where you live? You’re going to have to answer all these questions if you file a paper return making the claim and it’s a bear so DON’T DO IT UNLESS YOU’RE IN THE RIGHT!
    Seriously. I’m assuming that you are in the right but you’ve got a red flag waving—you had a judge award custody of your children to someone else. You need the think long and hard about why a judge would do that and was it for reasons that the IRS would have a problem with—for example a court record saying that the kids weren’t with you, you dumped them at a neighbor’s or something. If there’s anything like that in the court record, that’s what your ex will be producing to show the IRS that you are not the custodial parent and not deserving of the exemption, EIC, child tax credit, etc. Your issue is not just what case can you build to prove to the IRS that you really were the custodial parent, but also what case your ex will be able to prove.
    It’s not going to be easy, and it’s going to take a long time, like 4 months before you ever see any money—and that’s if you win. But if your children lived with you and you provided their home then it’s your right to claim them.

  195. Luke on Fri, 6th Jan 2012 11:03 pm
  196. My mother strongly feels that my aunt has claimed my sister with their w-2s however she doesn’t file taxes bc she isnt workig and is on social secuirty and receives a check for my sister. The tax office told her to file taxes and if she was denied shed know if somebody had but how can she file without working? Is there any other way to get to the bottom of this?

  197. Jan Roberg on Sat, 7th Jan 2012 4:51 pm
  198. Hi Luke,
    You’ve got a good question but I don’t have a good answer. It’s wrong for a person to claim a child that doesn’t live with them on their tax return. You don’t want anyone illegally claiming your sister, but it’s looking like you might not have a way to fight back. I’m guessing that your mom and your aunt are not on speaking terms, otherwise they’d just talk it over.
    The easy answer, having your mom file a tax return and claiming your sister won’t get you any money but it still might be the best way to go. She could file a zero balance return–I actually recommend that for people who are concerned with identity theft (which is really what your aunt is doing). It won’t do your mom any good, but it will identify to the IRS that someone is claiming her child illegally.
    If she doesn’t want to do that, if your sister’s father is anywhere in the picture, your mom could sign a form 8332 and release your sister’s exemption to him. Probably not a great solution, but it’s an alternative.
    Another possibility may be–since I’m guessing that you’re the older brother, if you live with your sister and your mom, and if you have income, you may be able to claim her.–This isn’t as easy as it sounds. You’ll have to meet all of the other requirements. For one thing, nobody can be able to claim you as a dependent on a tax return. You really do have to live with your mom and sister, etc.
    If you think that you might be able to claim your sister, I’d go to a professional and have your return prepared. Realize that you’re setting yourself up for an IRS battle so if you’re going to do this you’ll want to make absolutely sure that you will qualify. That’s why I’d go to a professional–you’ll have several pages of questions you need to answer and forms to sign (the rules are tougher this year.) Good luck.

  199. Kristin on Sun, 8th Jan 2012 4:04 am
  200. I have a question for a friend. She was divorced in 2010. They have joint custody but the decree states she claims both children every year. Last year she did but this year her ex is saying he is already filing and he is claiming one of the children. I was trying to help her with the little bit I know but I wanted an expert to be sure. If she claims both now, what will happen it it does go through? What is the verdict if it doesn’t go through? I told her I thought she has the right because of the papers and that he would have had to file a Form 8332. Can you help? Thanks so much!!

  201. Tori on Sun, 8th Jan 2012 4:28 am
  202. My ex-boyfriend is trying to claim our son. He actually went threw my papers trying to find my son’s social. He told me he would get more than I would. He also tried to say he would give me what I would’ve received if I claim him. I want to claim my son myself. Can I put a stop on my son’s social? My son will be one within a couple months so this is all new to me. My ex claims 2 dependents just to take less out. He doesn’t really have 2! No other kids. My son is on my insurance threw my job, and he lives with me. No daycare, my family helps me out with baby sitting. My ex is in a rush to file just to beat me at claiming him. What can I do to prevent him from claiming my son. I’m also in the process of filing child support.

  203. Luke on Sun, 8th Jan 2012 9:24 am
  204. Cam she file that without any income? And will it affect her social secuirty?

  205. Jan Roberg on Sun, 8th Jan 2012 1:24 pm
  206. This is for Kristen,
    Because the divorce decree was in 2010, the IRS will not use the divorce papers to determine who gets to claim the exemption. What they will use is custody. If your friend has custody of the children, then she gets the whole ball of wax (exemption, EIC, Head of Household, Child Tax Credit, and Child Care Credit.) If her ex claims the child and he has no right to, she can go through the process (paper filing, etc.) and she will win.
    If her ex has custody, she’s got a problem. The only way she’ll be able to enforce that she gets to claim the child is by going back to court and getting the judge to issue a court order that her ex sign the 8332 form. For that, she should talk to an attorney (I can do tax, I can’t do law.) The 8332 only gives her the exemption and the child tax credit (no EIC, head of household, or child care credit.) Getting a court order might cost her more than she’d get tax-wise so that’s something to consider.
    You say they have joint custody. That’s can be tricky, but the big issue is where the children sleep at night. In many families, joint custody means Dad has the kids on Wednesdays and every other weekend, Mom has the kids the rest of the time. You do the math, it means that Mom has the kids for over 6 months of the year therefore by IRS rules she is the custodial parent. But of course you have to look at your friend’s actual situation.
    So, back to your question: if she claims both children now, what will happen if it goes through? Answer: if she has custody and files first and gets her refund and her ex tries to file, his tax return will be rejected by the IRS e-file system. He’ll just have to cool his jets because he won’t have a rat’s patootie’s chance to get anything. If she does not have custody and she files first, he’ll be able to fight it and win with the IRS. She should not even try to claim EIC or head of household on either child because it’s illegal to claim that if you’re not the custodial parent.
    What about the form 8332? The custodial parent signs it, and the noncustodial parent files it with his or her taxes. In a perfect world, if the ex is the custodial parent, he signs the 8332 forms every year like he’s supposed to as per the custody decree. If he’s not the custodial parent, your friend does not need an 8332 to file her taxes.
    With your friend, the power is really with the custodial parent.

  207. Jan Roberg on Sun, 8th Jan 2012 1:56 pm
  208. This is for Tori,
    There is no way to put a stop on a child’s social security number with the IRS. (But I wish there was.)
    If your ex does not live with you and does not have custody of your little boy then he doesn’t have the right to claim him on his taxes. In order to claim your son, he would have had to have lived with him for over 6 months. It gets a little tricky with newborns, but if your ex never lived with you then he’s out of luck.
    If your ex files first (which is what he’s trying to do) then your tax return will get rejected in the IRS efile system when you claim your son. Then you just follow the directions above about filing a paper return. It’s a pain in the backside, but you will win. It’s harder to prove where an infant lived because you can’t use the school system—but your son is on your insurance and the IRS accepts that as a form of proof. Also keep track of doctor appointments and things like that. Your doctor will have your address in his system. As you take your son in for his shots (seems like that’s all the time when they’re babies) you’re building a nice little record of you having custody.
    As far as your ex giving you the money that you would get for claiming your son—okay, where do I start? He can only claim EIC if he has custody, so if he’s talking about that and he doesn’t have custody and has you say okay to it and you take money from him then he’s making you complicit in EIC fraud. Just sayin’. If he has custody and has a right to claim EIC, then why would he offer to give you the money? He’d be using it for the good of your child, right?
    Now, this is Jan the older, cynical mom-type friend talking, not Jan the tax person okay? There’s a reason he’s your EX boyfriend isn’t there? There’s something about him that you don’t trust. I’ve got a feeling that you’re a good person and a good mom and your gut is telling you not to trust this guy. My gut is telling me that you’re right about that. Trust your instincts and do what’s right by yourself and your child.
    Okay back to being tax me: I hate this rush to file first thing, but it sounds like you’re in that situation. I’m guessing that your ex does have the social security number already. If not, do not let him have it. Absolutely do not let him have the social security card! If he goes to the IRS they require that he have the social security card in his hand to file a return for him. Many tax places do. Sadly, some don’t. And of course, if he files his own return he won’t need the card at all. Good luck. I hope things work out your way.

  209. Jan Roberg on Sun, 8th Jan 2012 2:00 pm
  210. And finally, for Luke,
    Yes, your mom can file a tax return with nothing on it. A few years back, the IRS had everybody filing returns even if they didn’t have to in order to claim a stimulus payment. And it won’t hurt her social security. She can even do it on my website (there’s a link at the top). A 1040 EZ is free.

  211. Kendall faulkner on Mon, 9th Jan 2012 1:13 am
  212. I have a question. I have had my son all year exspect 2 weeks. He is 5 years old. He started school here with me and his mother told me back in march that she wanted him to live with me for good she don’t call him or nothing but the other day she brought taxes. One of the few times we have heard from her. Now I’m not sure if we have proof that its been over 6 months I know we do right at 6 months. But with little is its hard to have proof if they never get sick. But I feel that she might claim him even tho I told her no. What do I do? I have a family of 5 and sometimes its hard taken care of them now I have her try to take money from us when she does nothing to help me with my son

  213. dana on Mon, 9th Jan 2012 1:39 am
  214. my ex and i had an agree regarding taxes, i would let him claim our daugther and he would give me 1600, but now he is saying no. im a full time student, so i know theres no way for me to file her but my question is once i do get a job, will he have a right to claim here because hes paying childs support, even though she’s living with me, her daycare is by my home, her insurance card comes to me?
    hes telling me that because he has to pay child’s support, he gets to claim her every other year, is there any truth to this?
    he gives me 100 a month.

  215. Jennifer on Mon, 9th Jan 2012 4:16 pm
  216. Hi Jan,

    My husband and I just finalized our divorce in 2011. Our divorce decree says we have shared parental with the father being the primary. I also have to pay child support. Now he also had his atty state that dad gets to claim the kids every year on his taxes. Here is the kicker, I have the kids more over nights than he does. I can prove that. I have always claimed the kids even when we were married because he owed so much back child support. I have doing some research on this subject and I know that who has the kids for more over nights is the one that gets to claim them. Is that correct?

  217. christa on Mon, 9th Jan 2012 5:45 pm
  218. My kids father has claimed my kids 3 yrs n a row. N nothing is getting done about it so the first year my tax return was rejected so I mailed in all the forms and I mailed I’m the copy of the custody papers we were never married but he’s on the birth certificate. He signed over his rights to the kids 2 yrs ago he’s a wanted felon n he doesn’t work. He will make up stuff like say he’s a handy man does odd jobs and he cleans homes. Then hell claim the kids so if at the end he owes anything by him claiming the kids he comes out on top. So the year before last I go to. file n its rejected again so I go through the IRS again this time with my lawyer and then I get my money.. then last year it was rejected again he claimed again so here we go again I send in all of the proof he signed over his rights he’s never had custody and he hasn’t seen them march 2012 will be 3 yrs. So after a long wait I got my money. I’m afraid I’m gonna go through that again this year. I called the IRS today they said there’s an attachment sayin the kids were claimed twice they said it was on his. And mine and that they dis recieve all my stuff I have nothing to wiry about. Bit if he claims them again I’ve gotta go through this all over again how is this fair?? To keep giving a dead beat father money he hasn’t given me a dime or worked since they were born. My kids r 5 n 3… and its not right I don’t know what else to do. What is your opinion on this matter plz give me some advice on what to do he lies n files head of household to get all the credit he’s a con artist plz help GOD BLESS you.. thanks for ur. Time..

  219. kim on Mon, 9th Jan 2012 6:01 pm
  220. My husband and his ex divorced in 2000. at the time they had two minor children and it was put in the divorce decree that she claim the son and he claim the daughter each year for taxes. They had shared parenting. In July 2008, he filed for and won sole custody but they left the taxes the way they were in the decree. Their son turned 18 last April and graduated high school in june with child support being stopped June 9th. He has lived with us the entire year and started college, which we pay tuition for and he still lives at home, not at school. He does not work so we support him fully except for her support which stopped early june. The ex informed us that she talked to a tax attorney and they told her she can still claim him because she paid support for half the year (which she didn’t). Can my husband claim him since he supported him and he lived with us more than half the year too?

  221. Krystal on Tue, 10th Jan 2012 5:37 am
  222. Hello,

    My ex husband and I have joint physical and joint legal custody. It is split right down the middle. In our divorce decree it states that I am entitled to claim both of our children on odd years and he is entitled to claim them on the even years. I just found out that he filed his taxes and claimed both children. What do I do??? Please help.

  223. Jan Roberg on Tue, 10th Jan 2012 12:12 pm
  224. Hi Folks,
    I’m playing catch up. I had so many posts yesterday that my web guy shot me an email telling me about it. I went and hit approve all, but then I couldn’t answer them. Then I “unapproved” them so that I can handle them one at a time. So if you’re one of the “unapproved” I’ll get to you–except the people trying to sell dustmops. Dustmop people–you can’t sell your dust mop on my website. Have you seen my house? If you had, you would not be trying to use me to sell your stupid mops.

    Sorry about the rant.

  225. Jan Roberg on Tue, 10th Jan 2012 12:14 pm
  226. For Everyone With Custody Issues:
    I wrote a blog post especially for you. I talked to a lawyer–whose advice is “talk to a lawyer” basically, but the post should give you a little insight about who can claim what: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

  227. Jan Roberg on Tue, 10th Jan 2012 1:47 pm
  228. Hi Krystal,
    You just found out that your husband already filed and claimed the kids. Here’s something–the IRS isn’t accepting returns yet. He may have filed, but they don’t have it. Now his return will probably get in first, but we don’t know that for sure yet.

    You’ll know for sure that he claimed your kids if your tax return gets rejected when you try to e-file. If that happens, then you’re going to follow the instructions about filing a paper return, etc. Also see the post about exemptions to see where you fit into the mix:http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    But the bottom line is–the IRS does not have his return yet. It’s actually possible the you could still file and beat him (I hate suggesting that, I think it makes for bad tax returns.) But just letting you know.

  229. Jan Roberg on Tue, 10th Jan 2012 3:44 pm
  230. This is for Kim—whose husband and ex divorced in 2000. (Sorry, I thought I was fixing the order and I only made it worse.)
    First, I’m sending you to the custody page: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
    Okay, so she went to a tax attorney huh?
    Ahem: the divorce decree was in 2000 and it has conditions. The IRS does not count conditions in a divorce decree, therefore the only way she can legally claim your son—(okay step son) that you have custody of is for you to issue a form 8332. Those are the IRS regulations.
    So by IRS rules you win.
    But! And this is big—by court order, you could lose if she takes you to court and the judge orders you to let her claim the son. This is where you want to talk to an attorney—but I’m thinking a divorce attorney. Because even though you win by IRS rules, I don’t want you sitting in jail. And I’m not an attorney so I can’t answer those questions. But here are the questions that I would be asking:
    1. When does the exemption rule stop? Age 18 or 21 or when?
    2. Will the judge count paying ½ a year of child support as being in compliance with the divorce decree?
    3. Is this worth the cost of going to court over?
    Now since you’re paying for college and she’s paying child support, I’m guessing that EIC is not an issue. Also, the child tax credit is gone. The value of the exemption isn’t as big for you as it is for other people. Your big issue is the American Opportunity Credit which can be worth up to $2500 in a tax credit. Here’s the part that’s really going to cheese you off. (Okay cheese isn’t the word I was thinking of but this is a “family” blog.)
    Let’s say the ex claims your stepson. That means that she gets the American Opportunity Credit—which could be worth up to $2500, based upon the tuition you paid. Yes, you read that right. If you pay the tuition directly to the school then that counts as a “gift” to your son. Therefore, either he can claim the credit (which won’t help because he has no income, or the parent claiming the exemption can. See why you should talk to a lawyer?
    I’m sorry about that. I hate giving people bad news. So that you can see what I’m talking about, here’s a link to the IRS website publication 970. You want to go to the bottom of page 13 and read through page 14 too. http://www.irs.gov/pub/irs-pdf/p970.pdf
    Bottom line—you win with the IRS, but you need to talk to a lawyer about how that plays out in court.

  231. Jan Roberg on Tue, 10th Jan 2012 3:55 pm
  232. This is for Christa–who’s ex keeps claiming the kids and has no right to.

    I answered your question on a different page: http://robergtaxsolutions.com/2011/09/when-can-i-file-my-2011-tax-return/ I got that one first. I posted it here too though because I think it’s relevant over here.

    Good luck. I know it’s a struggle but you’re doing all the right things. Thanks for posting.

  233. Jan Roberg on Tue, 10th Jan 2012 4:23 pm
  234. This is for Jen whose divorce was finalized in 2011.
    You have the children at your house more than the father does and you have to pay child support? Just when I think I’ve heard everything…
    So here’s the deal—a 2011 divorce decree means nothing to the IRS. The custodial parent has to sign a form 8332 for the non-custodial parent to claim the kids. But here’s your problem—your divorce decree also says that he’s the primary custodian. You may be counting nights, but he’s got a legal document in his favor. You’ve got some “issues” here. How solid is your ground on the “more nights” issue? I suggest you be really solid if you’re going to fight this one. But remember, even if you win with the IRS, you’ve still got court issues.
    The decree gives him the exemption so what you’re fighting for is claiming head of household. (EIC and child care credit if they apply.) Are these worth it for you? You might want to run the numbers first before you put up a fight. My gut reaction is that you’re going to have an uphill battle on this one.

  235. Admin Roberg on Tue, 10th Jan 2012 4:39 pm
  236. This is for Dana. whose ex says she has to let him claim her kids every other year because he pays $100 a month.
    Dana, Dana, Dana, Dana. (I like your name.) Dana, I’m thinking he’s not being 100% honest with you. Actually, I’d kind of like to smack him upside the head if you don’t mind. You sound like a nice girl and it sounds to me like he’s trying to take advantage of you. If I’m wrong, I apologize.
    But here’s where I’m coming from. $100 a month aint chicken scratch. You cannot raise a child on $100 a month. So ain’t doing you no favors.
    Okay, a little, but not much. But here’s the technical stuff: 1. sounds like you were never married so no divorce decree. 2. sounds like no court order or anything of the sort to allow him to claim that child. 3. you have full custody. 4. the IRS does not allow him to claim your child without you signing the 8332. 5. He can’t claim EIC because he doesn’t live with you and your child. If he’s claiming EIC then he’s cheating on his taxes.
    Sweetie–he’s paying you to let him cheat on his taxes. That’s not a good thing.
    Now hear me out–if I’m wrong about this and he’s got 50% custody and your child spends half of his time over at your ex’s house, etc., etc. and your ex is raising him like a real father does–that’s not cheating on his taxes–that’s being a good Daddy and doing right by his family even though he’s split with the mom.
    I’m not hearing the good Daddy song in your post. Unless there is a court order about letting him claim the child–he get’s no exemption. And even if there was a court order allowing him to claim the child, he does not get EIC or head of household status. The way I’m reading it, those are all yours.

  237. Admin Roberg on Tue, 10th Jan 2012 4:51 pm
  238. This is for Kendall—you have custody of a little one, not sure how to prove it as he’s only been in school for a little while.
    Kendall, you have 5 children—you have enough kids in the house to qualify you for all the the EIC possible and head of household status. I’m pointing this out because if your ex does manage to claim your son, it probably will not hurt your tax return.
    But, I’d file with your son on there anyway. He’s your son and you’re supporting him. And you still qualify for the exemption and child tax credit and that can help you.
    If it comes to battle, you have school records—okay school wasn’t 6 months, but that’s a big one. You were concerned because I always suggest using doctor records but your little one hasn’t been sick—congratulations on that. I have a sneaking suspicion that you won’t have any trouble documenting that your boy lives with you. With 5 kids, I be the whole neighborhood could testify on your behalf. (I know my neighbors with the 5 kids—all adorable, hard to miss. Your family, by virtue of it’s size stands out In a crowd.)
    You can’t prevent her from trying to claim him, but you know you’re in the right and I feel confident that if it comes to a fight that you’ll win. The school is a big deal and your ex won’t even have that.

  239. Vang on Wed, 11th Jan 2012 1:56 am
  240. My ex has custody of my son and daughter… And she is having one on the way with the other man… She’s telling me that no one going to claim them… She said that if I claim them it’ll be fraud because I didn’t take care of them or support them. I only support them when I see them every weekend or every other weekends. Everything I buy them stays here. Both of them don’t work. They do, but under the table… Who is going to claim them? I’m afraid that if my mother in law or father in law is going to claim them for their tax break on their two business, I’m afraid they might just give her the money to support her other baby that isn’t mine. What can i do to prevent myself from fraud. I’ve been claiming them for the last two years and now it’s NO on
    claiming them. Please advise… I just worry that if I she doesn’t want me to claim them and if I take the kids for the weekend and I don’t have enough to support them… She is going to pull something on me.

    Sorry for my English..

  241. Jan Roberg on Wed, 11th Jan 2012 2:41 am
  242. Hi Vang,
    You have a good question. You get your kids every other weekend and you support them while they are with you. You’re doing your best to be a good dad. What the whole take thing is about is that even though you are a good Dad, the person who gets to claim the children for tax purposes is the parent that the children live with more often. In your case, the kids live with their mom more.
    If you claim your children for EIC or head of household when they don’t live with you, then it is considered to be fraud as far as the IRS is concerned. I’m sorry that’s hard to hear. I don’t think you’re trying to do something bad, you’re trying to do right by your kids. I’m just telling you that’s how the IRS sees it.
    Now—what can you do. One possibility is for your ex to allow you to claim the exemption. You would get the tax deduction for the exemption plus you would get the child tax credit. She would have to sign a form called an 8332 form for you to do this. She would be allowed to claim the children on her own return for the head of household status and the Earned Income Credit.
    Here’s another thing to think about. You’re concerned that she’ll allow someone else to claim your children—their grandparents. If the children live with their grandparents and the grandparents provide their support—then they are allowed to claim the kids. If the children do not live in the house with the grand parents—well then that’s fraud too!
    Here’s a link about how to split an exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
    It sounds like you really are trying to help your children and that you want to claim them so that you can be a better father. Hopefully, if you present it to your ex that way, she will be understanding and allow you to claim the exemption by signing the 8332. If she is unwilling to sign, you really do not have a case. Sorry. Good luck.
    By the way, your English is fine.

  243. Tiffany on Wed, 11th Jan 2012 10:56 pm
  244. I’m so glad I found this site. Here’s my predicament:

    My ex has custody of our two daughters on paper due to my joining the military in 2006 and being stationed in Hawaii. I’ve been out since 2008, but he won’t sign papers to go back to joint custody. We’ve been divorced since 2003. The new custody arrangement I had to sign states that he claims the children on his taxes every year. In 2010, he decided he wanted to go back to joint custody, but refused to re-do the paperwork to make it “legal”. However, I have the kids every other week, sometimes more if they want to stay more or if he has something else to do and wants them to stay with me.

    In September 2011, my 16 year old moved in with me full-time. That means I had her for about 10 months of the year. My youngest lived with me more than 6 months, as well, counting every other week, the extended Christmas break and all the nights I had her when she wasn’t at her dad’s (I keep a calendar of the nights they stay with me for good reason).

    I pay for school lunches, cell phones, vehicle insurance for the 16YO (I bought her the vehicle; it’s in my name) and instrument rental for band class. I carry the medical, dental and vision insurance, even though he is the one who’s supposed to carry it, and I pay for all those visits. I pay for my youngest’s braces, as well. In other words, he really does not support them AT ALL.

    Whew….all that to ask: When I prepare my taxes, it says I have the superior claim even though he has custody. Can he go back and take it from me if I claim them? I have all the proof I need that I support them (receipts, school records, insurance documents, etc.) even though on paper HE has custody.

    What am I in for if I claim them both? Or at least the one who lives with me full-time. (THANK YOU!!!)

  245. Kassie on Thu, 12th Jan 2012 7:22 am
  246. Hey guys. I am not sure where the writer of this article got the information but it isnt true. This happened to me last year. My ex husband claimed my daughter even though he hadn’t seen her once all year and I have sole custoday and rights to the exemption. I freaked and thought I wouldn’t get the money and called the IRS. They told me to simply mail in my return and we would both get the refund. I could t e file bit I mailed it in and got my full refund 3 weeks later. He also got the exemption. Then once tax season was over they sent us both a letter stating that we both claimed the same person and we needed to make sure we were legally supposed to and if not file an amended return.

    As the custodial parent regardless of whether or not someone else files first you just mail your return in (not an amended one) and you will also get the refund. If the other party does not amend their return then you will both be audited and you will prove that you had the right to claim the child and the other party will have to pay back the money as well as fees and penalties.

    Don’t believe everything someone writes on the Internet! Call the IRS if you want to double check me but I have been through it and that’s how it works. I am also an accountant and have studied tax law.

  247. Melinda on Thu, 12th Jan 2012 2:26 pm
  248. I gave up custody of my son due to being in a dve shelter-he did not want to pay child support. Anyways for 11years i have been trying to regain shared custody but he has to agree, He has not and I have not asked to claim our son for 11years – our son lives with both of us, and there is no child support due to when he is in my care I take care of his expensives and when he is in his care he does. Or when ever needed… Can I claim , even though I dont have legal custody but have him 50% of the year and without the father’s permission???

  249. Admin Roberg on Thu, 12th Jan 2012 3:14 pm
  250. Hi Tiffany,
    Thank you for your service to our country. Always have to make sure the veterans get their due.
    Now for the tax part: I see your predicament. From a tax point of view—I see you has having the custody—no matter what they divorce decree says. The kids live with you for over half of the year. I would have have not problem with you claiming your kids for EIC and head of household status. The 16 year old seems like a sure fire winner and you’ve probably got a good shot at the other one too.
    You signed the divorce decree back in 2003—so if your decree has “no conditions—like saying he has to pay child support” then he can just use that decree to claim the exemption and the child tax credit.
    Now, since the decree also says that he has custody of the kids—you might have a tougher fight if it comes to that, but I think that you can prove actual custody and win on that one. At least I would take the case. Is it possible you’ll lose—yes, possible, but as I’m reading it I think you’ve got a decent case. Not for the exemption—but for EIC and head of household status. So you see what you’ve got to work with.
    I think you’ve got a good case for the split exemption—or maybe even you both claiming one child for everything (since the younger is with him 6 months out of the year.) You’ll be better off if you two can work together and decide an agreement before either of you files, then you don’t have to worry about what comes back at you. (I know, for most people that’s way easier said than done.) Good luck.

  251. Admin Roberg on Thu, 12th Jan 2012 3:20 pm
  252. Hi Kassie,
    Just what part of the blog isn’t true? Sounds like you did the right thing by mailing in your return. Sounds like you both got the audit papers. And it sounds like your ex eventually had to pay back the money to the IRS. That’s what this is all about.

  253. Admin Roberg on Thu, 12th Jan 2012 3:52 pm
  254. Hi Melinda,
    For your answer I have to say, I’m not sure. When you’re claiming kids for EIC, there’s a whole bunch of questions on a form that wind up getting asked. Most of the time when I’m answering questions online, I’m jumping to some conclusions or I’ve got pretty much enough there to make a fairly safe judgment call.
    I don’t really have enough information from you to give you a solid answer. My guess is you’re going to have a problem with the father whether you can legally claim your son or not. The big issue I see here is you say 50% of the year. You need to have your child for more than 50% of the year. So your questions will be—1. How much time did I really have my son for? 2. How can I prove it? 3. If it comes to a fight, will I win? 4. And if I can win, will it be worth it?
    So your first issue to settle is; were you on the plus side of the 50% or the minus side? If you’re on the minus side, I wouldn’t even try because it sounds to me like the Dad would fight and you would lose. If you are on the plus side, then you have the other questions. Good luck. Sorry I don’t have a better answer for you.

  255. Carla on Thu, 12th Jan 2012 5:58 pm
  256. My husband and I split up in Feb. I moved out and have been out on my own with my daughter ever since. She is my child. We had no children together. We have not gone through a divorce yet the papers will be filed soon. I can not afford a lawyer so Im waiting to save enough.

    My ex asked me over nad over to file together this one last time-I recently told him NO and now he’s teling me he needs my SS# because he needs to get information from our 2010 taxes. We never had to get info from previous years before and HR Block has done our taxes for years. I am afraid he’s going to file online as if we’re together and try to cheat me out of my taxes. This also includes claiming my daughter. How do I prevent him from doing this and if he does do it, is it considered tax fraud? Can i take him to court? I dont trust him and I want to protect myself.

  257. Jan Roberg on Thu, 12th Jan 2012 6:32 pm
  258. Hi Carla,
    Depending upon the circumstances, you have a couple of options.
    1. You may file with your ex one last time and split the refund. You say you don’t want to, and that’s probably smart. But it is perfectly legal for you to do that if you choose.
    2. Because you have been separated for over the last 6 months of last year, then you (because you have custody of your daughter) may claim the Head of Household filing status. Your husband will have to claim married filing separate filing status.

    With you claiming head of household status, you will be entitled to EIC, the child tax credit, your daughter’s dependency exemption and the child care credit (if it applies.)

    With your husband claiming married filing separate status, he’s up a creek without a paddle. Seriously, he probably owes the IRS a lot. That’s kind of what happens during the first year of a divorce/separation. The mom gets the kids and the guys don’t know they should change their withholding so they get slammed at the tax office.

    So–if the Dad is a good, honest, person, good father, etc. you may wish to consider filing jointly to save his behind. But I’m not hearing that in your post.

    If he is not all of the above–then I recommend the following:
    1. Do not give him your social security number yet. (Yet, it important.)
    2. You go file your tax return, claiming your daughter and all the tax benefits you qualify for.
    3. After you return has been efiled, accepted by the IRS AND you’ve got your tax refund in your hands (or bank) then, and only then, do you give him your social security number. He needs it to file his Married filing separate tax return.
    4. Do not, under any circumstances give him your daughter’s social security number.

    Now can he get all that information from H&R Block because they do have it in their records? Sure he can. He is legally entitled to obtain that information from them if you two filed a joint return with that company. But you don’t have to make it easy for him.

    One last thing to think about. If you do decide to file together (I’m not thinking you want to but I want you to know your options) if you file together you can do something called a “split refund”. The form is called 8888 and here’s a link to that: http://www.irs.gov/pub/irs-pdf/f8888.pdf. If you go back to H&R Block, they can so that for you. It also gives you a “neutral terrritory” which can be helpful when you’re going through a divorce. Good luck.

  259. Wendy on Thu, 12th Jan 2012 8:11 pm
  260. My husband and his ex separated in 2000 and officially divorced in 2007. They share 50/50 custody (one week here, one week there). Since their separation, they have taken turns claiming their daughter on their taxes … one on even years, one on odd. This was never a problem. However, last year, I claimed my step-daughter on my taxes because it was my husband’s turn and he had lost his job and I was paying all the bills … and his daughter was still living with us 50% of the time. Our tax preparer advised us that this was acceptable and I received my return shortly thereafter. Now, more than 10 months later, I received a letter from the IRS advising me to make sure I was qualified to claim this child, as someone else had also claimed her. From what we can gather, her mother claimed her also, even though this “every other year” rule has been in effect for 10 years. My tax preparer has contacted the IRS on my behalf and we are now awaiting word from them. Was I not qualified to claim my step-daughter?

  261. Admin Roberg on Thu, 12th Jan 2012 8:42 pm
  262. You are married to your husband so that makes the husband’s daughter your step daughter. You meet the relationship test–so that’s okay. And it sounds like you meet the custody requirements too.

    But–I just want to make sure everything is as my Dad would say, “hunky-dory”. The thing that worries me is that you talk about “your” return and “your husband’s” return as though they’re not being filed together. And that’s still okay–probably.

    But–this is where you could potentially have a problem. If you and your husband are living together and filing separately, then you must file as married filing separately (MFS). You cannot file as single or head of household. If you file as MFS, then you cannot claim an Earned Income Credit.

    If you are living together and claim Head of Household instead of filing as MFS or Married Filing Jointly–that’s not allowed.

    So, while as the wife of the father of a child–you can claim the relationship, and the custody, and that’s all good–if you’ve claimed head of household–well oopsie you can’t do that and you lose.

    Now you’re still entitled to claim the exemption with the MFS status, but the tax benefits are not as good as if you had claimed MFJ or head of household.

    The IRS will not care if you’ve been switching the exemption every other year, their whole thing is: who gets to claim for the particular year in question and they won’t take history into account (or so they tell me anyway.)

  263. Wendy on Thu, 12th Jan 2012 8:51 pm
  264. Thank you for your response. My husband and I do file married, but separate. And I would hope that my (very experienced) tax preparer knows that when you file MFS, you cannot claim the EIC (which you pointed out.) I guess my question is … since I claimed the child and (presumably) her mother claimed her, who gets the return? I filed early and received my return right away. I’m assuming she filed after and hers was rejected. So at this point, will we both have to fill out the lengthy IRS forms I’ve heard so much about to prove our case? And will she have a stronger claim because she is the biological mother, even though my gross adjusted income is more?

  265. Jan Roberg on Thu, 12th Jan 2012 10:50 pm
  266. Hi Wendy,
    I wish I could give out prizes for stumping the EA, because you win! You claimed Married Filing Separate–so that was the right thing to do. You didn’t claim EIC (you’re right, your preparer would not have done that.) So the issue is the dependency exemption.
    And in my book–I would have let you claim the exemption too. I think your preparer was right, and I still do. Where I got stumped is–who has the stronger claim? Does a biological parent beat a step parent on a tax return? I don’t know. I looked things up in the various IRS publications and it doesn’t say. So I called the IRS.
    I hate calling the IRS. Because they won’t just answer the question, “Who has the higher right, the biological Mom or the Step Mom?” No, you have to go through their whole process. It took an hour and 40 minutes. But I really wanted to know. She didn’t know, but now she was like–”we gotta figure this out!” So while I was on hold, the IRS lady was going around polling the other IRS agents and asking her supervisor. So here’s the official answer:
    A step parent is considered a parent for the purposes of claiming an exemption. No preference should be given to the birth parent over the step parent in a tie breaker. But–the chief issue here is really where did the child spend the most time? So when you get down to having to fill out the forms, etc. Where did the child sleep the most. That will be difficult because it sounds like you really had a 50/50 arrangement, but bottom line will be where your step daughter lived the most.
    If for some reason, you and the birth mom are exactly even on nights spent at your house, then the tie-breaker will be who has the higher adjusted gross income. So–your job is to figure the nights.
    And one other thing–although I’m 99.9% positive that the person who claimed your step daughter is her mom–if you two are at all on speaking terms, it’s probably worth talking to her about it. For one thing, identity theft on tax returns has gone up astronomically (I know, it’s a long shot, but I did have that happen to a client so I never rule it out.) But also, maybe you two could come to a friendly agreement instead of fighting it out through the IRS. I know, it’s not always possible, but I just thought I’d put it out there.

  267. Lacey on Fri, 13th Jan 2012 4:28 am
  268. Ok so I would just like to be clear on this. Does the exemption form 8332 entitle my ex to claim the EIC? Or just the dependant allowances and such? We’ve been separated since May of 2010 and he wants to be able to claim our daughter on his taxes. I unfortunately already signed a form 8332 allowing him to claim her for 2012 and future years but do to current disagreements may be revoking that. How long do I have to send him the form revoking it and what’s the best way to go about doing that to cover my backside. For the record the children only spent 9 weeks with him this year and will probably only be the same next year.

  269. Jan Roberg on Fri, 13th Jan 2012 3:33 pm
  270. Hi Lacey,
    That’s an important question–the form 8332 does not allow your ex to receive EIC, the EIC and the Head of Household designation is for you only, because you are the custodial parent. Your ex only gets to claim the exemption and the child tax credit.
    Now you can revoke the 8332, but it will take some time. According to the IRS instructions; the revocation can be no earlier than the year after the tax year in which you give the notice to the noncustodial parent. So if you give him the revocation notice now (that’s 2012) the earliest tax year you can have it back is 2013.
    You’re going to save a copy of that notice and you’re going to send it with your tax return every year afterwards. (We’ll know more about that stuff later, but by 2013 hopefully you’ll be able to attach it as a PDF and still e-file.)
    You’ll also have to have proof that you sent him the notice. I would suggest using registered mail, return receipt requested. When you get that little green slip back keep it in a safe place with things like the kids social security cards and such.

  271. Wendy on Fri, 13th Jan 2012 5:22 pm
  272. Thank you so much for trying to get an answer from the IRS on this. I really was trying to do everything by the book! At this point, I guess I will just hold tight and see what the IRS has to say in response to my tax preparer’s inquiry. And maybe, just maybe, my husband’s ex will realize that this was not the right thing to do and not to pursue this any further. I would like to say I could discuss this with her, but if she knows how much stress this is causing us, I’m afraid that would just encourage her to pursue it even more. Thanks again for your help!

  273. Katy on Fri, 13th Jan 2012 5:56 pm
  274. I have a question hopefully you can help me with. My ex & my divorce was finalized Dec 08. My ex filed his taxes first but claimed our children as Half yr. Which of course meant I couldn’t claim them. That made my tax return drop big time obviously. He & I know claim 2 kids each & we have done that for the last several yrs. So basically in 08 we both got screwed on our taxes & didn’t get back all we should have. How can we correct this issue? Can we both file amendments? What would be the best action if anything?

  275. Jan Roberg on Fri, 13th Jan 2012 6:58 pm
  276. Hi Katy,
    If you need to make changes to your 2008 tax return then you should. If you file your amendment before April 15th, 2012, then you should still be able to receive any refund that is owed you. Don’t miss the deadline though or you’ll be out of luck.

  277. Katy on Fri, 13th Jan 2012 7:37 pm
  278. Thanks Jan, Can we both file an amendment & what do we do to file the amendment?

  279. Jan Roberg on Fri, 13th Jan 2012 8:39 pm
  280. Hi Katy,
    It depends on how you filed the first return in 2008. Technically, you were not married because of the divorce. I’m thinking you should file separate returns, showing your status as either single or head of household (depending upon your situation.) You should not be Married Filing Separate (which is bad as far as refunds go and wrong because you were divorced.) If you used any of these statuses, then you just need to change your filing status (if it was MFS) and switch the claims on the kids. If you filed as Married Filing Jointly, you’ll probably want some help from a pro–because that would be a little harder to fix.

  281. Stephanie on Fri, 13th Jan 2012 10:18 pm
  282. Hi, the father of my daughter has told me he will claim her on his tax return this year. I was not working last year, so I allowed him to do so, although she lives with me. I have worked this year and I planned on claiming our daughter on my tax returns. I have legal court papers that indicate joint custody, but I have been given physical custody. Can I use these papers to show proof to the IRS? Thanks

  283. Jan Roberg on Fri, 13th Jan 2012 11:07 pm
  284. Hi Stephanie,
    You’re asking a really good question that I’ve heard often. First–you don’t need to send the IRS any kind of proof when you file the return. (You probably knew that already but somebody asked me that on the phone so I thought I’d point that out here.)
    But the real question you have is will my court papers that say I have physical custody be proof? And my answer is–kind of–but it’s not 100%. It strengthens your case, but the real proof is where the kids actually live. Maybe you know someone who supposedly has physical custody of their kids but really the other parent has them? There’s always some case like that. The IRS has seen plenty of cases like that so while your document that says you have custody is helpful, if your ex came up with documentation that you haven’t been around at all, he gets the kids to school everyday and takes them to the doctor, etc–well then you’d be out of luck.
    Bottom line, you want to hang on to those school documents: report cards and anything that shows your children living at your address. That’s going to be the hardcore proof that shows that the children really are with you more so than a court document.

  285. shadow on Fri, 13th Jan 2012 11:54 pm
  286. i was wonderin how i stop my ex from filling taxes on my son he doenst not live with his father and he only sees him on weekends i live in bakersfield is there a numbre i can call to stop him or a place i can go to?

  287. Jan Roberg on Sat, 14th Jan 2012 6:39 pm
  288. Hi Shadow,
    I’m sorry, there’s no number to call or place to visit to prevent someone from claiming your child. I wish there was. You can fight back after the fact, but there’s no way to make a pre-emptive strike. Sorry.

  289. brad on Sat, 14th Jan 2012 6:54 pm
  290. what are the consequences of my ex wrongfully claiming my son?

  291. Katyfug-+ on Sat, 14th Jan 2012 7:50 pm
  292. Jan, NO we filed separately. I was just saying he got screwed out of the $ he was owed just as much as I did. Cause we both now claim 2 kids each. He claimed all 4 as HALF which of course didnt get him back his full amount & it TOTALLY screwed me. I just want to get my amount. But since we actually get a long I figured both fixing our taxes would show the error better? I dont know. I just want to get to claim the 2 kids I always claim for the EIC. Do I have to redo my entire taxes or just the messed up part & how do I prove I can claim them? Do I have to provide proof? What kind of proof if I do? cause our decree only mentions the yrs filing from 2009 on. Ugghh

  293. Jan Roberg on Sat, 14th Jan 2012 8:10 pm
  294. Hi Brad,
    The consequences of your ex claiming your son on her tax return when she doesn’t have a legal right to (besides you being really ticked off) are as follows:
    1. She will be assessed the tax that she should have originally had she not claimed your son.
    2. She will have to pay interest on that amount from the date her return should have been filed (basically April 15th of the year.) No escaping interest payment.
    3. She may have to pay penalties of up to 25% for the late payment of her tax, and depending upon how much she owes she could also face underreporter penatlies or even fraud penalties. Most likely, since she’s the Mom, probably just the late payment.
    It may take the IRS awhile to catch up with her, but eventually they will, assuming that you filed a return and that you went through the whole paperwork process proving your superior right to claim your son.

  295. Jan Roberg on Sat, 14th Jan 2012 9:09 pm
  296. Hi Katy,
    You both need to file amended returns because he’ll have to take 2 of the kids off and you’ll put 2 on. Since you and your ex are in agreement, then you shouldn’t have to have proof because you’re both making adjustments.
    Since you didn’t file together, that’s half the battle. You need a form called a 1040X. It’s still probably worth hiring someone to make sure you get everything you’re entitled to. If you did your original on Turbo Tax, you can access your original return and do the 1040X from there. You can call the TurboTax phone number on the box and the person can talk you through the exact steps. You won’t be chaning your numbers, just the exemptions (and maybe the filing status).
    This will be worth some money for you so congratulations! Remember, amended returns take some time to process. You won’t see that refund for a good 12 to 16 weeks.

  297. Jess on Sun, 15th Jan 2012 3:42 am
  298. Last year my ex claimed our child even though I not only have full custody but a restraining order against him as well. Of course when I filed it came back rejected and my tax guy mailed it in. It took a while but I did get the return deposited into my account a few months later. My question is since the IRS gave me the return that I was in the right and will he be able to try and claim him again this year nothing has changed with the custody or order and he doesn’t pay child support on time and only sees him a few weeks in the summer for his visitation, I don’t want to have to fight and wait again like last year.

  299. Arielle Collier on Sun, 15th Jan 2012 5:04 am
  300. My child’s father & I am no longer together – my choice – which made the break up very nasty and the court case that much worse we currently have 70/30 custody with me as custodial parent and her living with me. However our court order states he can claim our daughter every other year in odd years which would make 2011 his year o claim her – he hasn’t worked since 2008 & I have proof of that bc 3 times a year he has to update his financial affidavit – his list rent & bills but beside it his mother wrote she pays all his bills to show he has no income & no taxes going out – I went ahead and filed early and claimed him because after calling the iRS weekly to ask if he could claim her the said no every time bc she dosent live with him, it’s a deduction since he dosent pay taxes he dosent qualify and his parents can claim him as a qualifying relative since the support him he did list he makes 400 a month from mowing his moms yard on the last one – now I just want to make sure I was right he can’t really claim her because I did already & plan to bc he pays 49.00 a month in child support & it dosent seem fair he should even get to but his family has money & had a high dollar attorney – I am 21 and have my own home with my child and boyfriend and he is 22 and lives in his own house his parents pay for. If you could just let me know what you think. Thanks!

  301. Arielle Collier on Sun, 15th Jan 2012 5:07 am
  302. By the way our court order came into place in 2011

  303. Admin Roberg on Sun, 15th Jan 2012 5:26 pm
  304. Dear Jess,
    I’m sorry about your problem. The sad part is, you could very well have this same fight over and over. The only hope is for your ex to wise up and not do it again. You may have noticed some of the other letters, one fellow, this happened to 4 years in a row.
    The IRS is cracking down on crooked preparers who sign off on bad returns–it’s now a $500 fine to us every time we don’t do what’s called “due diligence.” The catch is, if your ex lies, or files his own return, it’s kind of hard to prevent him from making the claim.
    But you know you’re right, you’ve won before, and you’ll win again. It just stinks that you’re the good parent and you have to wait for your rightful tax refund while your ex plays with money that doesn’t belong to him. Sorry.

  305. Admin Roberg on Sun, 15th Jan 2012 6:04 pm
  306. Hi Arielle,
    Thanks for your post. I think that as far as the IRS is concerned, you’re okay. You split in 2011 so the only way he can claim your daughter is if you sign an 8332 from. So in the eyes of the IRS–you’re good.
    Now there is the court order thing–I’m not a lawyer so you would need to discuss that with your attorney, but for him to enforce that court order he’d have to take you to court to do it. But why would he? If he has no income, then he has no need for an exemption and he wouldn’t get a child tax credit (you’ve got to have some income for that.) So what would there possibly be to gain? (Unless of course he really did have income and then he’d have to divulge that to the court and then he’d have to pay real child support and not $49. He’s in a lose/lose situation.) Once again, I need to tell you that I’m not an attorney so I can’t tell you how a court order would work.
    But as far as I’m concerned–you’re in good shape with the IRS for claiming your daughter. (And I’m allowed to give that kind of advice!)
    Now one thing I just want to make sure about. At one point in your post you mentioned claiming “him” instead of “her”. Did you claim your ex as a dependent too? I’m thinking you were thinking of your ex while writing about your daughter so you said him accidentally. If I’m wrong and you did claim your ex–well then you shouldn’t do that because even though he makes no money, he’s no longer related to you and he doesn’t live with you so you can’t claim him–let his mama do that. (Oh was that snarky? Oops.)
    You do mention that his family has money and has a high dollar attorney so that’s always going to be a concern for you in the back of your head. So while it doesn’t make common sense for him to force a court order (‘cuz there’s no money for him to do it) if he’s a vindictive little twit then he might give you trouble just for the sake of causing trouble. (Oops, got snarky again.) If that happens–the worst that he could do is force the exemption and the child tax credit from you–you own the EIC and head of household–he can’t take that away from you.
    Since you should be getting a nice chunk of money back from the IRS, take $2000 and stick it in a savings account. Let it be your “war chest” in case there’s any kind of fight. Hopefully you never need to use it, and now you’re on your way to saving money– it’s a win/win for you. From what you’re telling me though, I wouldn’t lose any sleep over your taxes. If he does give you any trouble let me know.

  307. Arielle Collier on Sun, 15th Jan 2012 11:33 pm
  308. Yes I meant her I would never claim him. But thanks do much for your help!!

  309. KELLIE on Mon, 16th Jan 2012 6:20 pm
  310. My husband’s ex wife was arrested for domestic violence against their daughter who at this time also had a 2 month old baby. Long story short, they courts granted my husband guardianship of his grandson and placed his daughter in our home with temporary custody until a count date was set. Before the court date the ex said she will just sign off all custody of the minor child, which she did and the judge signed the papers granting my husband custody of minor child and guardianship of the grandson. We put the daughter back in school and I stayed home to care for her son. This went on from January until the end of November. we recieved no child support from ex wife nor was there no child support order for the grandson from his unknow father, so we care for the both of them on our own. well the ex claims them both on her taxes and now the irs is saying we owe them over $7000. what do we do and how can she claim them??? She says cause they moved back in with her in November when the restraining order was lifted, that gave her ground to claim them both for the entire year.

  311. Jan Roberg on Mon, 16th Jan 2012 7:04 pm
  312. Hi Kellie,
    You should fight this. The children lived with you for over half the year–that’s the main point that the IRS will be looking at. You have 11 months, the ex has 1. That’s going to be the bread and butter of your argument. You’ll have to prove to the IRS that the daughter and grandson were with you, but I’m guessing you can. Before assessing you the $7000, the IRS should have sent you a letter saying “Oops, did you claim the wrong child?” (Okay, it’s not that friendly but that’s what it means.) And you should have responded–”No, we didn’t make a mistake.” And then they would ask you to prove you had custody–usually through school or medical records.
    It sounds like a step was missed. From what I’m hearing, I think you’ve got a strong case. You might want to take it to a professional and get some help (especially if you missed a step in there) but the ex doesn’t sound like she has any type of a claim on those kids. Good luck.

  313. Sandra on Mon, 16th Jan 2012 11:25 pm
  314. Hi….here is my situation….my ex and I have been split for 8 years and I’ve claimed my daughter every year. She lives with me and she stays at his aunts house every weekend. He visits with her on Sunday for a few hours. He recently sent me a text stating he has hired an accountant and he will go through with filing because he was informed he has rights because he does pay child support every month. If my daughter stays at his aunts every weekend and not his place does he have a right to claim her?

  315. Jan Roberg on Tue, 17th Jan 2012 2:38 am
  316. Hi Sandra,
    Is his accountant old? You see, if you were divorced in 1983 or earlier, then your ex may have some rights to claiming an exemption because he’d be paying child support. Of course, your kids would now be in their late twenties and you wouldn’t be claiming them on your tax return anyway.
    Who do the children live with? YOU! Who provides them a home? YOU! Who gets to claim them on a tax return? YOU! Unless there’s an important piece of information that I’m missing–you win hands down.
    Forgive me but I’m watching Mizzou play basketball on TV–I believe what you’ve got here is a slam dunk!

  317. boon on Tue, 17th Jan 2012 5:39 am
  318. so i have a question both me and my ex have sole and physical custody of my daughter and she lives with my ex for school but she when she is not in school and is on break she is with me. but i have medical benefits for my daughter. since my ex doesnt work and my daughter is being claim by my ex’s sister, whom lives in the same house hold but dont supply for my child since my ex is on welfare. will i be able to claim my child and not make a mistake and is there a paper form that i can go to court and claim my child.

  319. Jan Roberg on Tue, 17th Jan 2012 4:09 pm
  320. Hi Boon,
    You and your ex both have custody of your daughter but your daughter lives with your ex during school. If you count the actual number of days that your daughter sleeps at your ex’s house–I’m guessing that he’s going to have more than 183–that’s the magic tie breaker number.
    Now, your daughter also lives with her aunt–she is also allowed to claim your daughter because your daughter lives in her aunt’s house–and since your ex has no income, it makes sense for the aunt to claim her.
    So, as far as the IRS is concerned– if your daughter lives with them the most–and I think that’s how it’s going to pan out, then it’s okay for the aunt to claim her.
    I’m not an attorney so I can’t tell you about going to court–but court issues and IRS issues usually don’t go together. Now you could obtain a court order to be able to claim your daughter as an exemption on your tax return (once again, you’d have to talk to an attorney about that) but being given the exemption only allows you the exemption and the child tax credit. The person who has custody for over 6 months of the year will get the head of household designation and EIC if that’s applicable.

  321. Sandra on Tue, 17th Jan 2012 4:51 pm
  322. Yes he is old….haha…he mentioned his accountant has over 18 years of practice. The only information I did not mention is that I am a full-time student and I don’t make over 7,000 a year. Wheras he has a full-time job and he thinks because I don’t make enough he has a right to claim her. She does live with me all year and like I mentioned does go to his aunt every weekend and she provides all her items.

  323. Jan Roberg on Wed, 18th Jan 2012 2:29 am
  324. Hi Sandra,
    So let’s see, you are a working mom, and going to school to make life better for yourself and your child and you get a little break on the weekends. (Which I’m sure you appreciate.) But seriously, the exemption is yours and yours alone. You may–note I say may–release the exemption to the Dad and let him claim the exemption and the child tax credit so that you keep the EIC–but he can’t use it. You cannot release the exemption to his sister so that’s just not going to work.
    Oh, you might want to let his accountant know that tax preparers that file false EIC claims are subject to a $500 fine per incident–just in case he was thinking of filing an EIC claim for your ex’s sister–just saying. That’s a new rule this year and since he seems a little behind the times about the whole child support rules he might not know about that either. (Sorry–snarky again. I get mean when I don’t have enough chocolate.)
    Now as far as your concerned–you claim EIC, the exemption and the child tax credit. You might not want to claim head of househole–just claim single. If you only make $7,000 it shouldn’t change your refund any. Low incomes with a “head of household” status tend to raise a red flag so if your refund is the same, just file single–it’s a better designation until you finish school. And good luck with that too!

  325. Keli on Wed, 18th Jan 2012 4:52 am
  326. I am so happy I found this site as I have been googling and reading articles all day trying to find a solution to my current predicament.

    Here’s my scenario: I am currently a full-time student, a semester away from completing my masters. I currently have a daughter who is 5 years old. I did not work at all last year, I only received unemployment (I am regretting not having the taxes taken out at this point). I live in NY and my daughters father resides in FL. I am contemplating whether or not I should give him the green light in filing for her. Is this possible, if so…is he entitled to the same credits I receive? He currently pays child support and it is not much.

    What concerns me the most is, we are making an arrangement where he will give me a certain payment. If he does not hold up his end of the bargin could I just file anyway to then make his null and void? Is it possible to have her paternal grandpa file for her? (I sortve trust his “moral compass” more)

    I have no clue exactly what my options are! I would greatly appreciate any feedback you are offering!

  327. Kristy Morua on Wed, 18th Jan 2012 5:27 am
  328. My ex boyfriend has my son on mondays, tuesdays and thursdays. I have him wednesdays, fridays, saturdays and sundays. For the past 4 years my ex has claimed our son. Can I take him to court for this?

  329. Amy Zing on Wed, 18th Jan 2012 7:28 pm
  330. Question…. My ex and I have have a week on week off custody schedule. We split everything down the middle. During my week I pay during his week he pays. He has claimed them for the past two years in a row without my knowledge. Previous years we both took one of the children and claimed them. This year I managed to get my taxes in first. I also counted out calendar days and I had the kids 5 more overnights in my home this year? Who is right here?

  331. pbrown on Wed, 18th Jan 2012 11:51 pm
  332. Married and living apart for 2 year. My wife doesnt work and lives with a girl friend. She has temp. custody of our 2 children,( pending court) I get the children over half the time, not ordered to pay support, doctor and school records shows the girl friends house. I do work and got rejected to claim the boys. They were claimed by the girl friend. Dependants, child tax credit, eic, the girl friend says my wife signd a paper to claim them. Dont the dad get to claim if the wife didnt. I do no the girl friend cant claim eic for them, but what about dependant and child tax credit. I did provide over half to take care of them. What kind of proof do I need if doc and school is at the girl friends address.

  333. Admin Roberg on Thu, 19th Jan 2012 1:46 am
  334. Hi PBrown,
    You’ve got an interesting problem. It seems to me that you have the boys for more than half the time–if that’s the case, you’re legally entitled to claim them. Your problem is proving your case. The IRS is going to use school records as the primary form of proof of custody. So my question to you is–what can you use to prove that you have custody? So you might lose this one, even if you’re in the right.
    Now about your wife signing a paper to let the girlfriend claim the boys–she can release the exemption to you–as a non-custodial parent, but she can’t sign an 8332 to the girlfriend–so–somethings funky there.
    Now here’s another issue for you–you’re still married. This gives you a little power. You have a couple of ways to play this. All involve paper filing a gearing up for a fight.
    1. Claim head of household and claim your kids and claim EIC and the whole works. Why yes–if you really had the kids over 1/2 the time–then this is the choice I’d make. You’ll have a hard fight because of the address thing–but get your ducks in a row and go for it. Recognize that you could lose, but I think your case is worth the shot.
    2. If you are positive that you’ll lose the head of household issue because you can’t prove the kids lived with you for over 6 months–then paper file your tax return as Married Filing separately. Claim the exemption and child tax credit–no EIC no head of household. You’ll still get an IRS notice, but you win because your children live with your wife–no problem. You get to claim them because you are not divorced. (And, as a nasty little side benefit–the girlfriend gets found out for claiming kids that aren’t hers.)
    Good luck.

  335. Admin Roberg on Thu, 19th Jan 2012 2:02 am
  336. Amy Z,
    I have a question–If you each claim one child every year but he claimed both kids for two years in a row without you knowing–how did you find out? Or how did you not know? Didn’t you get rejected when you efiled? Somethings not right here.
    But for your question–you had the kids for 5 more days than he did–technically you win–but let’s get real, how are you going to prove more days? Why don’t you and the ex go back to your original agreement and each claim one child? You sound like you’ve got one of the few perfect arrangements of a 50/50 agreement so why ruin that?
    You’re a parent now. It’s important to act like an adult, especially if your ex isn’t. Don’t let him get away with claiming both kids–but don’t you go doing the same thing. You should have claimed only one. You should paper file for the prior years to claim one child.

  337. Admin Roberg on Thu, 19th Jan 2012 2:21 am
  338. This is for Keli—
    Grandpa—trust Grandpa. I’ve never met Grandpa and I trust his moral compass too. Here’s why: You have custody and you live in New York. Your ex lives in Florida. If you let him claim your child for EIC and head of household, then you are guilty of income tax fraud. I don’t think that’s what you want to do.
    Listen to what you’re saying in your post—we’re making an arrangement with your ex and he will give you a payment. Here’s what my IRS ears hear(by the way, I’ve been on the phone with the IRS all week-my IRS ears are in full gear): I’m working with my ex to cheat the IRS but I need a plan for if the boyfriend cheats me. See how that sounds?
    Now I’m quite certain you’re not the tax cheat type. I can tell that by your comment about grandpa and his moral compass. That’s why I’m voting for Grandpa—he’ll help keep you out of trouble.
    So, you’re receiving unemployment and that’s taxable. You claim your daughter, head of household status and the child tax credit. You’ll have to pay tax on the unemployment so you’ll want the deduction for your daughter and the reduced tax rate for head of household status.
    Do you live with your father? If you do, you may be able to allow Grandpa to claim your daughter, but only if you live together and if his income is higher than yours.
    But—remember, you’re going to be taxed on that unemployment you received. You might just want to keep the exemption for yourself.

  339. Admin Roberg on Thu, 19th Jan 2012 2:23 am
  340. For Kristy M—
    I’m not an attorney so I can’t make any calls about going to court. What you can do is file paper returns and submit them to the IRS. You can go back as far as 2008, but you must get the 2008 return in by April 15th.

  341. Stephen on Thu, 19th Jan 2012 6:25 am
  342. Me and my ex were never married. We have 2 year old daughter. She has court ordered custody and I have visitation. Our visitation schedule states that we split the time 50/50. I have had her for more than half of the year. I told my daughters mother that I was filing for the EIC and the head Of Household status because I qualified for it. She told me that if I file she would have me charged with IRS fraud. My daughters mothers mother claims to be a tax professional with the college to back it up, allegedly. She told me that I could not claim anything and that her daughter can only file for all of the credits, and that I was ineligible to claim anything because of the court order. The court order states that we have 50/50, but I had our daughter for more than half of the year. Should I be afraid of the intimidation from both her and her mother?

  343. Jodie on Thu, 19th Jan 2012 5:22 pm
  344. Hi I have a question about married filing separately. I have 3 children and they lived with me for first 6 months last year and their father second 6 months. Do I have any right to claim any of my kids on 2011 tax return? They currently reside with hime and go to school in his district. We are separate and not divorced yet and his income is twice that of mine.

  345. Stacie H on Thu, 19th Jan 2012 7:26 pm
  346. Just to clarify the previous question….when I claimed my children on my 2010 taxes my ex (who was my husband at the time (we were going through court bc he was charged and later convicted of Bigamy)) is upset because his MOTHER tried claiming then on her and her husbands taxes and was denied because I already had claimed them…again I was the sole financial support of my children, they lived with me 4 days every week and they were going to school in the county that I lived in (not their father)….Can I be charged with IRS Fraud for claiming the children?? Was I wrong or right?? since he had $0 income for the year he didn’t even have unemployment the ONLY income he received was my child support payments!!!

  347. Stacie H on Thu, 19th Jan 2012 7:33 pm
  348. In 2010 I claimed my 3 children on my income taxes and I claimed HOH. I DID NOT have physical custody of my children, we did have joint legal custody but I did provide 100% of their support for the year. Their father did not have even a dollar of income. he did not work and he did not have unemployment benefits. My ex is upset saying he is going to turn me into the IRS for tax fraud because i did not have the right to claim the children on my taxes. Well he DID NOT file taxes for 2010 anyway so he said his mother was going to claim the children….SHE DID NOT HAVE INCOME IN 2010 only her new husband did. Was I wrong for filing?? Can I get in trouble from the IRS if he does turn me in?

    Just to clarify the previous question….when I claimed my children on my 2010 taxes my ex (who was my husband at the time (we were going through court bc he was charged and later convicted of Bigamy)) is upset because his MOTHER tried claiming then on her and her husbands taxes and was denied because I already had claimed them…again I was the sole financial support of my children, they lived with me 4 days every week and they were going to school in the county that I lived in (not their father)….Can I be charged with IRS Fraud for claiming the children?? Was I wrong or right?? since he had $0 income for the year he didn’t even have unemployment the ONLY income he received was my child support payments!!!

  349. sherry on Thu, 19th Jan 2012 7:38 pm
  350. what do i do if someone has claimed my kids on there tax returns this year nd last year without permission from and i have full custody of my kids??? what do i do? i havent worked in 2 years so i cant file taxes..

  351. Admin Roberg on Thu, 19th Jan 2012 11:59 pm
  352. Hi Sherry,
    So your problem is that you can’t file taxes. A couple of things:
    1. You actually can file a tax return even if you don’t have income. I know it sounds nuts, but if someone is really claiming your children wihout permission and it’s someone who shouldn’t–well at least you’re giving an alert to the IRS.
    2. If the person claiming them has any type of decent legal claim, you might not want to to that as you’ll mess them up, but if it’s someone who really has no right at all to claim your kids–then do it.
    3. Here’s something to think about–if you really have no income, how are you supporting yourself? Do you live with someone who’s supporting you? Maybe a parent or a boyfriend, or maybe even just a friend? If that’s the case, that person could claim you and the kids. Now a boyfriend wouldn’t count for EIC or the child tax credit, but he could claim exemptions for all of you. Or a parent could claim you and get child tax credit and even EIC if they qualified.
    I know, you asked for one solution and I came up with three–it sort of depends on what your situation is to see what’s best for you. But you can file tax return, you just might not get any money back.

  353. Admin Roberg on Fri, 20th Jan 2012 12:29 am
  354. Hi Stacie,
    First and foremost, I don’t think your case would be considered fraud by the IRS. You are the mother. Now you probably will lose if he files something because you aren’t the custodial parent, but it doesn’t sound like a fraud type case, more of an “I’m the mom, I thought I could,” kind of case.
    So here’s the issue—your ex is not going to file a tax return because he has no income. So this all kind of falls on the grandmother: this is the big question—did the children live with the grandmother? If they did, because she is married, that technically makes the man the children’s grandfather and he may claim them on his tax return—if, and only if, THE CHILDREN LIVE WITH THE GRANDPARENTS!
    Now, if the children do not live with the grandparents—well then we can start discussing fraud. (But Honey, I ain’t talking about you!) If the children do not live with the grandparents, then the grandparents can’t claim them.
    So, if the grandparents have a legitimate claim, then you could be put in a situation where you have to pay back the refund money that you received because of claiming the kids. There would be interest and a penalty for late payment of tax. If the IRS were to hit you with a fraud penalty, you call me because I really don’t think that should happen in your case.
    Now, if the grandparents don’t have a legitimate claim—that is, the kids don’t live with the grandparents—well then I don’t know of any reputable tax preparer that would follow through with the case.
    Now, as an Enrolled Agent, I am supposed to advise people to prepare their tax returns correctly—so this is my official Enrolled Agent licensed by the Department of Treasury) advice: you should have your ex sign a form 8332 so that you may claim the exemptions for the children and the child tax credit. You should amend your 2010 taxes and not claim head of household or EIC if you claimed that. That is the official, correct way to file your return.

  355. Admin Roberg on Fri, 20th Jan 2012 1:11 am
  356. Stacie part 2:
    Completely different answer–If you had the children 4 days a week–that means you had them for over 6 months of the year. That is physical custody–YOU WIN! I thought you meant that they lived with your ex 100% of the time.
    He’s got nothing on you. You get head of household, child tax credit, exemption, and EIC (if you qualify).
    Physical presence in your home means everything. Ignore my other answer.

  357. mary on Fri, 20th Jan 2012 1:17 am
  358. Ok so i have read you questions and my ex husband and i are going threw a long divorce as most people with children. I have had custody of our son since 2009. After my taxes got returned for the first year i had the child year long i just filed without being nice and letting her have the credit thinking this year as i told him i am going to claim him this year and low and behold he did it again.

    Now i have called the irs and answered all thier questions and they told me he had no legal right to file our child i have court documents showing i have custody, school transcripts showing everything. What will happen do him when i do an amendment for 2 years on him? Will he just get fined and have to pay back the credit ect… or will he actually have a chance of being prosicuted for fraud? And by winning which i know i will i have everything ready for when they ask for it will it prevent it for happening all over again next year? And should i notify him before hand to be prepared for being audited?

  359. Sarah on Fri, 20th Jan 2012 1:30 am
  360. This is our situation, my husband’s 2 kids mother has physical custody meaning she has them most of the time. She has never worked and has never had any income she lives off of my husbands child support and her boyfriends running around errands if you catch my drift. My husband has claimed them every year obviously because she has no income and she informs us the other day she was getting her mom to claim the kids?? She can’t do this right? They did not live with their grandmother at all! Since the mother can’t file it falls to the father doesn’t it? Please help with this. Thanks!

  361. Admin Roberg on Fri, 20th Jan 2012 1:40 am
  362. Hi Sarah,
    Here’s the facts:
    1. The grandmother cannot claim the children because they do not live with her. Period end of story.
    2. You and your husband may claim the kids if his ex releases the exemption or if he has a divorce decree giving him the right to claim the kids. When you claim the kids, you may claim the exemptions and the child tax credit—no EIC.
    The big issue you may be facing is EIC, because under the circumstances you don’t qualify. I don’t worry about anything else. So it’s not automatic that the father can claim if the mother can’t—everything revolves around who has the physical custody of the children. I hope that answers your question.

  363. Admin Roberg on Fri, 20th Jan 2012 2:02 am
  364. Hi Mary,
    What will happen to your ex when you amend your taxes to claim your son? The IRS will send you both letters asking if perhaps you made a mistake. You will say no. (I don’t know what your ex will say, but I’d guess he’ll say no too.) Then the IRS will send you paperwork asking you to prove you had custody. Yippie Skippy, you’ve already got your stuff together. (That’s the worst part for most people.) You will send the IRS photocopies of your documents to the address on the letter. Your ex will run around like crazy trying to find a way to prove he had custody but will fail.
    Eventually, you will get your money. Eventually, he’ll get a letter saying that he has to pay back the refund money plus interest and penalties. It is very doubtful that he’ll be prosecuted for fraud.
    Will you be able to prevent it from happening again? Sadly, no. Many of the posts I’ve read tell me about exes who do this repeatedly. Although I’ve got a post on a different page from someone who’s been banned from claiming EIC for 2 to 10 years, the IRS is very hesitant to ban an actual parent.
    Should you notify your ex beforehand that he will be audited? Mary, you’re a really nice person aren’t you? I can tell you’re nice. Nice is a very good thing to be. I like you. I like nice people. But you need a friend who’s not that nice, so let me be your not so nice friend for a moment okay? Here goes: Are you crazy? Don’t you go telling him nothin! He done did you wrong and now you’re gonna warn him that you’re fixing it? No way!
    Seriously, why should you tell him? He’ll figure it out when he gets the notice. The IRS won’t tell him it’s you (of course if he doesn’t figure it out then he’s stupid, but the IRS won’t tell.) It sounds to me like you’ve been pretty up front with him and he still pulled a sneaky on you.
    You go ahead and you do the right thing by claiming your children. Don’t worry about your ex, let him fend for himself. Keep being the nice person that you are because your kids deserve a nice mom. Be polite to your ex, but don’t tell him he’ll be audited. That’s the IRS’s job, not yours.

  365. Admin Roberg on Fri, 20th Jan 2012 2:22 am
  366. Hi Jodie,
    First, if you can avoid the married filing separately filing status (MFS), I recommend that. Now, you may not have a choice, but if you have a choice then the MFS is the one you don’t want.
    Now, if at least one of the children lived with you for over half of the year, then you would be allowed to claim the head of household filing status. I have clients that are separated and they share custody and they each claim on of the daughters. Although technically one daughter lives with one parent, and the other daughter with the other—in reality, most of the time the daughters are together switching back and forth at the different parent’s houses.
    So here’s what you can do:
    1. Make nice with the ex and file jointly with you both claiming the three girls together.
    2. Make nice with the ex and you to go together to the tax office to determine the best possible tax results of you both claiming head of household and a combination of the kids.
    3. Not make nice and file as MFS. You may be able to claim the girls if you can prove you had them for more than he did but moneywise this is the worst possible solution.

  367. Admin Roberg on Fri, 20th Jan 2012 2:32 am
  368. Hi Stephen,
    I’m attaching a link to a different page about court orders: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
    If you had your daughter for more than half of the year, then you have physical custody and in the eyes of the IRS you claim head of household and EIC. I’m not hearing anything about a court order that states that she gets to claim an exemption.
    I’m not seeing a problem for you with the IRS. I would talk to a lawyer to see if they can get at you with the court order, but tax-wise, if you truly have your daughter for more than half the year, then you should be okay to claim her.

  369. Zach on Fri, 20th Jan 2012 4:27 am
  370. Ok, this is probably similar to some of these questions so sorry in advance. I read all the posts and still seem a little confused with my situation. OK me and my ex broke up in the very beginning of 2009. When we were together (2006-2009) I claimed our daughter and we both shared the money when I got it and I paid our bills and what not. After we split I went and got a lawyer right away and had papers written up so we had joint physical custody. So we both have her 50/50. As far as taxes go what we have down in writing is that on even years I claim EIC and she claims head of household and then on odd years I claim head of household and she claims EIC. No conditions at all. Well this year without even talking to me she tells me she already claimed our daughter on her taxes even though it was my year to claim head of household. Her excuse is I claimed her 2 or 3 years in a row so it should be even now. When I did claim her then we were still together and it was before we had papers written up and it was with her permission and she got a portion of that money too. So now I’m mad because I was planning on paying all our daughters medical bills with the tax money and now I’m not getting anything. What can I do to rightfully get what is mine? Since I have papers signed by a judge do I talk to my lawyer or do I really have to go through the hassle with the irs?

    And how much exactly is the refund for head of household? 3500? I might be able to talk her into writing me a check if I can get on her good side…

  371. pbrown on Fri, 20th Jan 2012 6:19 am
  372. I wrote u earlier. married, lived apart 2 yrs. 2 children. wife lives with girlfriend. girlfriend claimed children dependants-claimed them as her grandchildren, just to get the eic, she cant prove she is the grandmother, shes not!! So will the irs automatticaly approve me, or do i still have to prove my case.

  373. Sandra on Fri, 20th Jan 2012 4:43 pm
  374. Thank You….and yes I do file single every year. You have helped me out so much.

    SIncerely,

    Sandra

  375. Cassandra Jordan on Fri, 20th Jan 2012 6:35 pm
  376. I have a step son that lives with us most of the year, and when he was a baby my husband and the mother of the child went to court and filled out an agreement. The Judge says that my husband can claim his son on his taxes in even years. My husband and I have never claimed him and the mother has, now we want to and she is complaining. So my question is this is 2012 do we get to claim him?

  377. Jess on Sat, 21st Jan 2012 12:12 am
  378. My ex and I were never married and we had a son. I have sole legal and physical custody, but he does pay me child support through a couirt order that garnishes his paycheck. He has not seen our son since he was 6 months old, now hes almost 2 years old. And we live in different states, I got a relocation order. In the court order it says that I file my taxes as “head of household” and he files “single.” Can he claim our son every tax year. or will I be the one to do it? Or can he even claim him?

  379. nikki on Sat, 21st Jan 2012 1:37 am
  380. Hi, today i filed my taxes and after the fact the tax preparer called me back and told me someone else filed my son! Im trying to see how do i get the papers to fill out for the IRS to prove that i should be the only one filing my son?!

  381. Admin Roberg on Sat, 21st Jan 2012 2:51 am
  382. Hi Zach,
    You’ve got a couple of issues here. So first let me try to sort things out a little. If I understand correctly, you and your ex have joint physical custody of your daughter, right?

    Now–your agreement allowing you to claim EIC while she claims head of household won’t fly with the IRS. Whoever claims head of household is the person who claims EIC.

    Only the custodial parent can claim head of household and EIC. The custodial parent may release the exemption to the non custodial parent so that the no custodial parent may claim the exemption and the child tax credit. It’s called splitting the exemption–I’ve got a whole other post about that.

    So, you want what’s rightfully yours. So what is that anyway? That’s tougher to determine as nothing about 2006-2009 matters–you were together and working together as a family unit then–old business.

    What about 2010? Sounds like both your tax returns were wrong.

    For 2011? Who had your daughter more, you or your ex? As far as the IRS is concerned that’s going to be the main consideration. Since your ex already filed, you’ll have to deal with the IRS no matter what. But I wouldn’t make a claim unless you know you’re going to win. If you can’t prove you had your daughter for more than 50% of the year, you’re not going to win the case.

  383. Admin Roberg on Sat, 21st Jan 2012 2:57 am
  384. @pbrown–
    She claimed she was the grandmother? Okay, that crosses the line and that’s fraud.
    You will still have to prove your case–because if you don’t the IRS could believe her. Do follow through, you don’t want her to get away with that. Good luck.

  385. Admin Roberg on Sat, 21st Jan 2012 3:06 am
  386. Hi Cassandra,
    This is 2012 but when you file your taxes, you’ll be filing your 2011 tax return. (I know it’s confusing. I deal with this every day–I never know what year to put on my checks.)
    So, you’ll file your 2012 tax return next year.

    And that’s all fine and good except for one thing. Your stepson lives with you for most of the year! That makes you the custodial parent and that gives you the right to claim the child for everything. I’m not an attorney so you should check with your lawyer, but the court order to let you claim the child is generally meant for the non-custodial parent. Custodial parents retain the right to claim children for head of household and EIC purposes so you should get to claim that part every year.

  387. Admin Roberg on Sat, 21st Jan 2012 3:21 am
  388. Hi Jess,
    I don’t hear anything in your court order about who is granted the exemption. If you’re Head of household you get head of household and you get EIC. And unless there’s something specific about him getting to claim the exemption–then I think you get the exemption and the child tax credit too.
    But paying child support doesn’t give him the right to claim an exemption, you would have to file a form 8332 to allow him to. Unless you have some sort of court order to do so, I don’t see any reason for you to give the exemption up.

  389. Admin Roberg on Sat, 21st Jan 2012 3:25 am
  390. Hi Nikki,
    You’ve got the beginnings of what you need already. Your tax preparer already did your return, now you just need to print out a paper copy and mail it in. That’s how you start the process. Eventually you’ll get a letter form the IRS and you’ll have to prove you have custody, etc. But it all starts with filing a paper return.

  391. Zach on Sat, 21st Jan 2012 4:27 am
  392. Thanks for your response. Yes we have joint physical custody and every 2 weeks I get her a total of 7 days and so does my ex. So it just about evens out. I could figure out who had her that extra day if I actually sit down and take some time to do it but I was thinking our papers that were signed by a judge and all that would keep our agreement. I also reread our agreement and it says one year she gets head of household and i get the dependency exemption then we alternate each year not EIC like I thought. As far as custodial parent I think both of us have that title. But wouldn’t our papers hold up and I should be able to get head of household this year? I know the irs doesn’t care about those things but if I took her to court she would end up owing me the money or something along those lines right? Or is this just gonna be a never ending battle?

    Yes I’m sure our 2010 tax returns were probably wrong. So in the future is this gonna have to be a race to see who does there taxes first to claim our kid or is there some way to make this right. Thanks

  393. Justin on Sat, 21st Jan 2012 4:33 am
  394. In December of 2010 my four children were placed with me full time by social services. For all of 2011 the children lived with me and I provided 100% of the financial needs. Their mother only had 4 hours supervised visitations per week from January through June and missed 40% of those. Even though they were placed with me in December, I was unable to have custody changed from joint to full until July of 2011. (there was an active C.H.I.P.S case open until July) I have not recieved any child support from their mother in 2011. In previous years when we shared placement we each claimed two children and she claimed EIC. This year I claimed all four children as dependants, CTC, and EIC.

    You know whats coming next…

    I filed my return and it was rejected because she claimed one or more of the children. So I am filing my paper returns tomorrow and waiting for the audit to begin.

    Curious of your thoughts on my situation. Anything i should worry about or any preparations i can make to speed up the process? Thank you in advance for you time during your busy season.

  395. Amanda on Sat, 21st Jan 2012 10:19 am
  396. My husband and his ex wife have been divorced since 2002. They are supposed to alternate years on claiming their daughter. However his ex always claims first and takes the exemption. She has done this for all of our years with the exception of 1. Is the only way to recoup the loss to take her to court? There is no way she would ever sign the form allowing us to claim yet the divorce decree clearly states we can.

  397. Admin Roberg on Sat, 21st Jan 2012 5:58 pm
  398. Hi Amanda,
    Part of your issue is going to depend upon what the divorce decree actually says and who has physical custody of the daughter.
    1. If the daughter lives will you for more than 6 months of the year–then you have the right to claim her. You’ll paper file like I explained in the main post.
    2. If the mother has custody, then your issue is more difficult but not hopeless. If the divorce decree has no conditions–meaning it doesn’t say anything about your husband having to pay child support or anything– then you can use the pages in the divorce decree instead of an 8332 form. You can go back as far as 2008 to make changes to the return.
    An exemption in the divorce decree allows you the exemption and the child tax credit, it does not give you head of household or EIC. But still, it’s better than nothing.

  399. Admin Roberg on Sat, 21st Jan 2012 7:50 pm
  400. Ah Justin, I’m sorry that you’ll have to go through this, but I’m also 100% convinced that you’re going to win with no problem either. You know the paperwork is coming so get your ducks in a row–school records are usually the best. Having the children on your health insurance is good too. I’m pretty sure you’ve got that all covered.
    Now as far as speeding things along with the IRS? Well, if you find a secret to that, let me know. It will take time, but knowing your in the right and that you’ll win will help. (I know I often say, “Good Luck” or something like that at the end, but in your case you won’t need luck–you’ve got a slam dunk

  401. Jan Roberg on Sat, 21st Jan 2012 8:06 pm
  402. Hi Zach,
    I’m attaching a link to another post I’ve got about court ordered exemptions: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
    You could wind up with a never ending battle, but hopefully it won’t be that way. Hopefully, your ex will follow the court order. If she won’t, you might want to consult with an attorney to see if it’s worth having the court enforce it. It sort of gets down to, “how much is it worth to you?”
    Divorce decrees and other documents signed after 2008 hold no sway with the IRS. It’s all about custody. Since you really are 50/50 you’ll have a more difficult time proving that.
    Under IRS rules, if there’s a tie—the winner is the parent. You’re both parents. After that, it’s the parent who had the child the longest—you’re exactly even. After that, it’s the parent with the highest Adjusted Gross Income. You might be able to win on that one—but if your ex can prove more days, then you’ll lose. Good luck.

  403. Janie on Sat, 21st Jan 2012 9:49 pm
  404. I am currently married to my husband but we have been separated for about a year and a half now. We are not legally separated. He lives in one state and I live in another. We have 2 kids together, and since we separated he hasn’t done anything for our children. Now I just started receiving child support about 2 months ago, but he feels that now he’s paying child support, he can fee free to claim our son. I have proof that I take care of my children, that everything they own is from me. Now I’m hearing that if we are not legally separated then he can claim our son, even though he has not contributed to anything towards the kids. Is he allowed to do that??

  405. Jan Roberg on Sat, 21st Jan 2012 10:25 pm
  406. Hi Janie,
    I think your husband is a little confused. And I can see the confusion, I went back to one of the IRS documents and I can understand how he misinterpreted it. But–you are the custodial parent. You get to claim both of your children on your tax return and you get to claim everything.
    So, no, he’s not allowed to do that.
    That doesn’t mean he won’t try–but you’re in the right.

  407. Jeremy on Sun, 22nd Jan 2012 3:40 am
  408. I have been separated from my wife for almost 6yrs now. I have tried to keep things amicable between us for the benefit of our 2 children. When it came to tax season, I agreed to let my estranged wife claim our kids due to the fact that I have defaulted student loans. I have read through a lot of the IRS documents and websites and I think I have a pretty good understanding of the code. But I want to be sure. We have no standing custody order nor do we have support in place. However the children do live with me full time. We live in separate states. In the past she has sent some of the refund money and is intending to do so again this year. I am hesitant to take this money for fear I may be implicated in illegal actions. What should I do?

  409. Admin Roberg on Sun, 22nd Jan 2012 3:08 pm
  410. Hi Jeremy,
    It is perfectly legal to allow your wife to claim the exemptions on your children. You sign the 8332 form and she claims the exemption and the child tax credit. If she chooses to send you money as a way to help you support your children because she gets a tax refund, well then that’s a good thing for her to do. It is a gift to you and the children. No crime no foul.
    Being perfectly technical–what you should be doing is you claim head of household status and EIC (if you qualify) and she should claim married filing separate with the kids’ exemptions. Granted, you won’t get any of the money back because of the student loan default but the refund will help reduce the amount you owe.
    Now let me talk about the student loan thing for a minute–one of my clients was in default and she made a payment arrangement on the student loans. We held off on filing her taxes for awhile because one she had made a certain number of payments, they took her loan out of collections and she got her tax refund. This might be a good solution for you–getting rid of a debt because they hold student loand over your head forever, and getting your tax refunds. It’s worth looking into.
    Now I’m not an attorney and I cannot give legal advice, but since I’m quite sure that this is how you’ve been filing there’s nothing to worry about. If a person had been allowing someone to claim the kids for EIC that wasn’t entitled to, now that would be a different story. If the rightful claimant for the EIC came forward and filed a paper return, then the IRS would be forced to go through the whole audit procedure etc. Here’s a link about that type of situation, just in case you were curious about it: http://robergtaxsolutions.com/2011/04/will-i-go-to-jail-for-eic-fraud/

  411. Agena Hartman on Sun, 22nd Jan 2012 3:09 pm
  412. Hi, Jan! I desperately need your help! My daughter and grandson moved back in with me Feb. of 2011 due to her and the baby’s daddy splitting up. The dad is paying $75 a week child-support and that’s it! My daughter is a full-time student and my husband and I are forking out lots more than $75 a week to support the baby and daughter….ex….daycare, clothes, shoes, food, etc. etc. The dad received his W2 about a week ago and claimed their son on income taxes without my daughter’s permission! My husband and I were planning on claiming daughter/grandson on our income taxes since being we have supported both of them since Feb. of 2011, but we haven’t received our W2/1099 (I’m self-employed). My question is…….how do I go about resolving this issue. And, if I persue this issue……am I getting myself involved in an audit? I’ve got proof that my grandson resides at our house……and that would be Doctor records, his birthcertificate and Daycare records.

  413. Jan Roberg on Sun, 22nd Jan 2012 3:39 pm
  414. Hi Agena,
    A couple of things for you.
    1. Of course you are entitled to claim your grandson on your tax return.
    2. Depending upon your daughter’s age, you can probably claim her too, which would also give you the tax credit for her being in school.
    So, since the ex already filed, you’ll have to file a paper return and go through that whole process, but you’ve got the records so you’ll win. It will take time, but you are in the right.

    Now you asked if you were involving yourself in an audit–an EIC audit is different from a regular examination IRS audit where they look at your books and stuff like that. I noticed from your e-mail address that you’re in a profession that tends to get audited a lot. If you, or people you know have had to go through one of those full examination audits, just thinking about getting audited like that can be pretty scary. But an exemption audit is just to verify who had custody of the child, nothing else. And that’s the kind of audit you’d have. Which you’ll win. (I also have the sneaking suspicion that if you had the other kind of audit you’d win that too.)

  415. Agena Hartman on Sun, 22nd Jan 2012 4:51 pm
  416. Thanks so much for the info! My daughter just turned 20 last Sept. And yes, I keep everything since being I’m self employed. I just didn’t want to involve myself in an audit and getting stressed/headache showing proof of expenses, income, etc. etc

  417. Stacy Dunn on Sun, 22nd Jan 2012 10:42 pm
  418. Jan I have a question I need answered. My partner has 2 beautiful children and was never married to there mother they lived together for 6 years and he has always claimed his children. The mother of the children has not always worked and didn’t work any last year and collects child support in order to get state aide. She doesn’t have to pay her rent and gets food stamps and health insurance thru the state. There is no court order for custody and my partner has the kids on Friday thru Sunday sometimes he will get them on Thursday or returns them on Monday’s this year she is saying he can not claim any of the kids because she wants the money.He was even kind enough to let her claim one last year and him claim one since she worked what would you suggest in this case should he claim one of the children as he has always done in the past?

  419. Jan Roberg on Sun, 22nd Jan 2012 11:10 pm
  420. Hi Stacy,
    You wrote such a lovely letter, so forgive me for stripping it down to the bare issues that the IRS will see.
    1. It looks like the ex might have the kids more than your partner. If so, then she wins on that point.
    2. But, it also looks like she has no earned income–there is no earned income credit for child support, welfare, or unemployment. So what’s in it for her? I’m not seeing her side of it.
    My personal opinion (which may not be shared by the ex) is that your partner and his ex go togehter to have their tax returns prepared and determine what makes the most sense for the security and well being of the children. (You see why I’m thinking the ex won’t agree?) Because they basically have a shared custody arrangement, I think they have some options and if they can work together it would be best for everyone involved.
    But–I’m guessing this won’t happen. Technically–she’s got custody, she can do what she wants. She should sign an 8332 to allow your partner to at least claim the exemption and child tax credit (they do her no good with no income). The 8332 would protect you from her coming back and claiming that he wasn’t allowed to claim the exemptions.
    I’m afraid that you’re stuck in a negotiating game. Perhaps, once she sees that she’ll get nothing from the IRS, she’ll rethink her strategy and allow your partner to claim the kids like he always has.
    Now if I’m wrong about her having the children for more time than your partner–all bets are off and he claims them for everything. But make sure you can prove it first because you know the ex is going to try to claim them and you’ll have an exemption audit on your hands.
    Good luck.

  421. Indie on Mon, 23rd Jan 2012 7:52 am
  422. My sister has sole custody of my children through a court order (long story) and in the order it states my sister (the children’s aunt) gets to claim my children as dependents (court order was issued in Sept. 2009). I am their biological mother and I have visitation with them. In 2011, I had my children 242 days (they slept over all of those days as well) I wanted to claim my children on my taxes for 2011, since I had them more than my sister did, but she stated I cannot because she has the court order for custody. In your article you state that “parents” can split the exemptions–would the same work in my case? Could I claim my children for the HOH and EIC only and my sister claim them as dependents for exemptions and child tax credits? Is she right in stating I cannot claim them because she has a court order, regardless if I had the children more or not? Also, since she does have custody, her address is registered with the children’s school, doctors, etc. how else could I prove I had them 242 days? I keep a log of all visits and I keep records of text messages, would any of that help prove I had them?

  423. Lily on Mon, 23rd Jan 2012 7:57 am
  424. My daugther is now 14, she lives with me for more than 5 years but because the divorce decree says she is the custodian and should get the taxes for her, she always keeps that money, I don’t pay child support because she lives with me, could I get in trouble if I claim the taxes for her? I remarried and have another child and we loose her credit because our income shows only one child.

  425. maria d on Mon, 23rd Jan 2012 4:48 pm
  426. i have 4 kids , me and my ex were living together last year we recently broke up , i told him i would be claiming all the kids but he did his taxes first and claimed 2 , what can i do to claim all my kids .school records, day care services (which i get help from the city to pay for it) are under my name , and as a single mother with no child support. for doctor visits Im the usual one to take them but the insurance is under his name since he is the one that pays for it thru his employer.. Is there any chance that i can win this ?? Thanks

  427. Jan Roberg on Mon, 23rd Jan 2012 6:11 pm
  428. Hi Indie,
    Thanks for your question. You have a unique situation. First–you asked about splitting an exemption with your sister. Although that’s a good idea, and it makes sense in your case, as far as the IRS rules are concerned–only the parents may split an exemption–not any other relative. It’s too bad because from what your post says, if ever there was a case that it would make sense to do that–I think your case is it.

    Now the other thing you mention is that you had the children for 242 days (I’m guessing nights too). Clearly, that shows that you have custody. Your problem, as I see it is in proving your case. Yes, they may have spent the night at your house more, but your sister has all the documents that say she had them. So even though you’re in the right–how do you prove it?

    And here’s one more potential problem–this is one of those things where I think you’ll want to talk to a lawyer because that legal stuff is out of my league. But there’s a court order stating that your sister has custody–what I’m hearing is that she’s not in compliance with that court order. How big of a problem is that? We are talking she’s your sister and all, and even if you two are disagreeing over claiming the kids–she had been taking care of them for years. You don’t want to get her into trouble (or yourself either.) Check things out with a legal eagle before you do anything that would cause either of you a problem. Sorry to bail on you, but you want the best advice possible. Good luck.

  429. Brian LaFlamme on Mon, 23rd Jan 2012 6:40 pm
  430. My ex wife and i have 2 children together and our divorce decree stipulates that we have joint physical custody. My ex kicked my 15 year old daughter out and has not had any contact with her since October 23rd 2011. I informed her that i would be claiming her on my taxes and she told me that she was and sent her tax return in first. When I get my audit papers from the IRS what can i use to prove that my daughter did, indeed, live with me from October on? My daughter saved all her text messages and all but i am not sure whether they can be used are not.
    Any help would be greatly appreciated.

  431. Tim on Mon, 23rd Jan 2012 8:12 pm
  432. My ex and I share custody of our 2 children. According to our 2005 decree, she is the primary, and I have them Fri evening – Sun evening. Additionally, they will stay with me for a week or more at a time over the summer and/or holidays, and I am securely present in their lives. Our decree has allocated that I claim child #1 and she #2 every year. This year I received a rejection claiming child #1 has been claimed on another return. In the past this has never been an issue. Now that I am remarried she has expressed entitlement to not only my money, but also my spouses. I intend to mail my return to initiate the auditing process, but can’t help but wonder if an action to initiate contempt of court wouldn’t be more fitting. Is there any reason I would not be eligible to claim child #1 as a dependant? My ex believes it’s because she filed first. I do recall that our decree stated if she had not filed Form 8332 by Feb 1 that I could claim child #2. Thank you in advance for your guidance.

  433. Donna on Mon, 23rd Jan 2012 10:36 pm
  434. Hi, me and my fiance have a child together. We agreed that he claims him for 2010 and i claim him for 2011. We are still agreeing to that. Is that ok to do? He said he doesn’t want to claim and he will think about it for the next years to come. We both spend time with him but i spend the most since he works more. But on every vaction I go on my son goes with me, since my fiance works nights My son is with me more.

  435. Jennifer Garcia on Mon, 23rd Jan 2012 11:52 pm
  436. Hello,
    Quick question, the father of my child just now told me that he claimed our 1 year old on his tax return, if i try to claim him also i know it will not go trough, i needed the money to pay for my schooling and babysitting, I have full custody of the child and has been with me since birth, father comes every 2 or 3 mnths is not involved. What would be the best solution to this. I know i need the money but i also know that i cannot let him do this. Thank you.

  437. Admin Roberg on Tue, 24th Jan 2012 12:51 am
  438. Hi Lily,
    I’m a little confused so if I’m getting my facts all messed up please straighten me out, okay? Your daughter lives with you and has lived with you for the past 5 years. Your divorce decree states that you ex is the custodial parent, but the reality is that she’s not.

    Is that all straight? If yes–then the custodial parent gets to claim the exemption, child tax credit, and EIC. (You don’t care about head of household because you’re married.) The way I see it–you are the custodial parent.

    Unless I’m missing something–I think you should claim your daughter on your taxes. You’ll probably have problems with that because I’m guessing your ex will do the same but you’ve read the whole bit about filing a paper return etc.

    So, if it comes down to an audit–where does your daughter go to school? That’s pretty much going to be the deciding factor. What have you got to prove your case? But after 5 years, I’m thinking you’ve got everything you need.

  439. Admin Roberg on Tue, 24th Jan 2012 1:08 am
  440. Hi Maria,
    The first thing I think you should do is to sit down a prepare you income taxes. (You can even use the 1040.com link at the top of the page. You can use the free trial just to get your numbers straight. First do your taxes claiming all four of your children and see what your refund would be. Next, take off the two children that your ex claimed and see what the difference is.

    Now, after you’ve looked at the numbers–is it worth fighting over? How much do you really have to gain? And what is the risk?

    Here’s why I recommend against fighting: you and your ex both had custody of the children. You both lived with your children for the entire year. I’m guessing that you were not married (if you were then that’s a whole other problem.) So in all fairness, each of you claiming two children is the fair way to handle your problem.

    But–you don’t want to be fair, so what happens then? You two are into the IRS tiebreaker rules–who gets to claim the kids? Rule 1–exemption goes to parent–you’re both parents. Rule 2–exemption goes to parent with longest amount of time with children–you had same amount of time. Finally rule 3–exemption goes to the parent that makes the most money–you mentioned that the kids were on his insurance–usually the parent with the insurance is the one with the higher income–you could lose claiming any kids at all instead of getting to claim the 2 that he’s letting you keep.

    I think you should claim the two children that you can. You may have split up, but you’re still going to have to deal with the father of your children for the rest of your life. Play nicely.

  441. Admin Roberg on Tue, 24th Jan 2012 1:15 am
  442. Hi Brian,
    The important issue is not October 23-December 31–your issue is: Can you prove that your daughter lived with you for more than 6 months of the year? If you can’t do that, then you have no case. Sorry. Next year you’ll be able to claim her.

    If your daughter did live with you for mover 6 months of the year–then school records are the most important factor. After that, health insurance, church records, medical records, things like that. But because your daughter is 15–school records are number 1.

  443. Admin Roberg on Tue, 24th Jan 2012 1:36 am
  444. Hi Tim,
    Here’s the big question for you–Does your divorce decree state anywhere that your ability to claim your children on your tax return is contingent upon you paying child support? (Or any other contingency?) The reason I ask that is because if you have no conditions, then you can just mail a copy of the relevant pages of your divorce decree along with your tax return.

    I would leave out the part that says “if she hasn’t filed form 8332” because that is a condition–that won’t fly–but do mail the part that says you claim child 1–no conditions.

    Now, you mention initiating a contempt of court charge, that’s where I defer to your attorney, I cannot give legal advice. (I always say, what’s the cost vs. what will you get in return?)

    Bottom line, as I understand your divorce decree–you are allowed to claim one child’s exemption. This gives you the exemption and the child tax credit. She is allowed the child for head of household and EIC purposes. (Splitting an exemption.) I think you’re aware of that but I just want to make sure that you understand that’s all you get. Good luck.

  445. Admin Roberg on Tue, 24th Jan 2012 1:57 am
  446. Hi Donna,
    Sweetie, you’re on the wrong page–you and your fiancé are together (it‘s okay, I just was surprised to see you posting here.) You’re totally cool. Do you and your fiancé live together? If yes, even if your fiancé works nights, then you son still lives with him.

    The beautiful part about your situation is that you are working together as a family unit. The three of you are in the process of building a future together so you are able to work together to do what is best for your family. Run the numbers both ways–what’s best for the three of you together. Do whatever gets you three the most money and put the extra towards that wedding of yours!

    Congratulations!

  447. Admin Roberg on Tue, 24th Jan 2012 2:01 am
  448. Hi Jennifer,
    You can file a paper return. That will start the process, it will go to the IRS and you’ll go through the whole audit thing like I described in the post. It will take time, but eventually you will win.

  449. mickey on Tue, 24th Jan 2012 2:07 am
  450. i have financially supported my nephew for almost 2 years now i claimed him and his sister last year and when she started school she went back to live with her mom, but i still have him. I recieved a letter in the mail that his ss# was used a the year he was born to file taxes and some1 was overpaid, the letter said my ss# and his were frozen but if i paid back all the overpayment they would unfreeze them and could use them to file in 2013, i dont understand any of this i hope im getting it right, when i spoke with the irs she asked for all of my info and if it was the same as last year i told her my niece no longer lived with me and why, so she calculated my taxes and said that would pay all the overpayment, but now the birth mom who hasnt even had him wants me to pay it out of my own sons taxes from his father so she can claim my nephew, but i think my return and the overpayment has already processed what do i do

  451. Jan Roberg on Tue, 24th Jan 2012 2:30 am
  452. Hi Mickey,
    Let me make sure I’ve got this straight. You supported your nephew financially. The big question here will be–where did he live? If I’m reading your posting right–he lived with you.
    If he lives with you, and you are the custodial guardian, then you claim him. Forgive me for being a little snarky but–your sister’s really got some nerve if she lets you take care of her children and then comes along and gets you in trouble with the IRS for doing so. Sorry, exes do bad things, sisters are not supposed to do that.
    And you’re not just in a little trouble–the IRS froze your social security number so you can’t claim EIC–she messed you up pretty good.
    Now it sounds like the IRS is going to unfreeze your account, but you’re still out all that money. This is crazy. I think you need to go see a professional and get some help. (I mean a tax professional, not a shrink. I got banned off of Yahoo once for saying see a professional and someone thought I was telling him to go see a shrink.)
    But as I see it, you’re the one who should be allowed to claim your nephew. You’re the one who he lives with, you’re the one supporting him. You’re the one who’s getting the short end of the stick!
    Maybe I’m not seeing something, which is why you want to talk to someone in person. This is too important to leave to an online forum thing like this. Money might be tight, but this could be worth thousands of dollars to you. I’m in St. Louis, but you can find someone near you by going to this website and typing in your zip code: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx?Token=
    I really think you deserve a fair chance at claiming what’s rightfully yours. (And you deserve a sister that treats you better. You can borrow mine. She used to make me eat my spinach when I was a kid but since I’ve grown up she’s been pretty cool.)

  453. Ryan Dickman on Tue, 24th Jan 2012 9:35 am
  454. My son was born Jan 14. after he was born we lived with her mother for about 3 months, but i was the sole provider. She didnt work, and we werent charged rent, After the 3 months with her mom we went to live with my parents, again we werent charged rent and i was the only one working and providing for our son, as well as her and her daughter. We moved out and lived together for a perioud of about 3 months, then went to live at her dads for a while. It was obviously a tough time. Around December we broke up, but we had made an agreement that she would claim but we would split it, since i was the one paying for everything and she would get more back. Now she doesnt want to split it with me, and Im throughly upset cause she didnt spend any money throughout the year. Can i claim my son instead of her under these circumstances. Again she only worked for about 3 months of the year, and still wasnt contributing almost anything to the support of my son. HELP!!

  455. Kristen on Tue, 24th Jan 2012 7:45 pm
  456. My husband has had custody by court order of his daughter for 3 years now. It says Joint custody, but we have school records to prove she lived with us. (for tax year 2010), But his ex “accidentally” used their daughters SSN to claim her. She said she amended it. We received our refund in July, but I just got papers saying we have to prove it because the other person who used the same SSN has not amended. If I have a court order stating joint custody and school records, is that a win for us? I assume she already claimed her again this year even though she lived with us for 8 months out of the year.(which we can prove) How will this play out for us for last year and this year. I have 30 days to prove it for 2010 and i just filed today for 2011 (which I expect a rejection since she already filed as well).

  457. Admin Roberg on Tue, 24th Jan 2012 9:02 pm
  458. Hi Ryan,
    I can feel your frustration. Bottom line–you both lived with your child for pretty much the whole year. Now, when you broke up in December–the baby went with your ex right? The reason I say that is because that’s pretty much going to be the determing factor there. If you fight it–that’s where the fine line will get drawn and you’ll lose. Now–and this is the part that’s going to bug you–had you stayed together through December 31st and didn’t break up until January–then you would have won because you make more money than the mother.
    But, let’s put this all into perspective. You two have a child together. Together, you have to support the child. So–she got the refund but if she’s using that money to take care of your child — well then all is good. Remember, the whole point of the earned income credit is to help families with low incomes take care of their children. For next year, you two will want to discuss splitting exemptions, but for now, I think it is what it is. Sorry.

  459. Admin Roberg on Tue, 24th Jan 2012 9:16 pm
  460. Hi Kristen,
    Basically, your school records showing that your daughter is registered to go to school with your home address is really your best proof. I wouldn’t send the court document saying “joint custody”–clearly you have the child for more time–why give the IRS any ammunition for the other side?
    Don’t be surprised if you have to go through this again, these types of “accidents” are quite common–I think they’re even more common than texting while driving.
    While school records are best, insurance papers, doctor and dental receipts, and church papers are also useful. But since you’ve got the school papers–go with that.

  461. desiree on Tue, 24th Jan 2012 11:51 pm
  462. me and my daughters dad just had court today. they ruled that we take turnd each year to claim our four year old daughter. we share legal custody but i have physical meaning she lives with me. shes with me 80 percent and him 20. what do i do?

  463. Jan Roberg on Wed, 25th Jan 2012 12:40 am
  464. Hi Desiree,
    you will want to split the exemption like I explain in this blog post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
    Because you have custody–you always claim the head of household and EIC status (if you qualify) and on those times when you ex gets to claim your daughters, then he gets the exemptions and the child tax credit. On years you claim them, you just take everything.

  465. deundrick coble on Wed, 25th Jan 2012 1:14 am
  466. i wuz audited in 2010 for claimin someone elses child and now owe over 5k. ive now had my own child and plan on claimin her. will dat effect the amount i recieve back and will dey tak what i owe out of my return?

  467. Jan Roberg on Wed, 25th Jan 2012 1:23 am
  468. Hi Deundrick,
    If the IRS didn’t put a ban on your social security number (and you’d know if they had) then you should be fine to claim your own child on your tax return this year. Assuming of course that the child did live with you for over 6 months of the year and you meet all the other requirements. (You know how it is, if you’ve been burned once, you don’t want to get burned again.)
    The IRS will keep the money they say you owe them, but if there’s any left over, you will get that. There will be a delay, but you will get the money.
    Don’t do one of those “bank loan” deals that some tax offices do where they take their fees out of your refund. If the IRS confiscates your whole refund, then you’ll have the bank and the tax company after you for fees and they can be even nastier than the IRS.

  469. Clifford on Wed, 25th Jan 2012 1:47 am
  470. Hello. I have kind of a complicated situation but I’ll explain it to the best of my ability, so here it goes.
    I have a daughter who just turned a year old. She was born January 18th, 2011. I was living with my babys mom up until early March of 2011. Let the record show, this was her dads home. So we were living with grandpa. Now. I moved out Early March so I was there for 2 months out of the that year, and even though it was his house, I was still with her and taking care of her. When I moved out I was working about 70 hours in a week every week. I got my daughter almost every weekend, if not every other weekend. It was like that from March until July. July the babys mom and my daughter both moved into my place but the records showed my daughter still lived with her grandpa and same thing goes for my babys mom until September, when we moved into another apartment. The grandpa has decided to claim my daughter on his taxes and the mother and I are not seeing eye to eye about things, nor do we ever really, so shes not really gonna side with me. I am on the birth certificate as the father. I am the biological father. I have been taken care of her as well. While she was at grandpa’s nothing was needed for her because we already had stock piles of diapers and wipes, along with formula and babyfood from Wic.
    Am I gonna have a problem when I go to file and claim my daughter? Will I basically just win since I’m the parent?
    I really dont have to much proof of where shes been at except by words alone. The records only show her technically living with me for 3 months, + the 2 months I was living with her at her grandpa’s. He hasnt had to pay for anything for her.

    What are my chances looking like?
    What is bound to happen?
    Thanks a bunch.

  471. Jan Roberg on Wed, 25th Jan 2012 2:08 am
  472. Hi Clifford,
    You don’t say, but I’m assuming that your baby lived with you and her mother from September on, right? So technically, she was with you for the most time. Your problem would be–can you prove it? And I’m thinking you can’t prove it so if it goes to a battle–it’s not looking good.
    But let me ask you this. (Because I’m an old grandmotherly type nosy busy body, okay?) What would you do with the money? How would you spend it?
    Now, what do you think Grandpa would do with the money? Realistically. You don’t have to write back, just answer in your head.
    Now–if either of those answers involved “taking care of your little girl” then that’s who really should get the money. That’s what EIC is really for–it’s for the kids.
    So–if you were thinking in terms to taking care of that little girl of yours, then I think you should go to Grandpa and explain–this is what I think is right for my daughter. Show him a plan and how you’re a responsible adult, good provider and all that.
    And maybe Grandpa is thinking the same thing and he’s got a plan for taking care of your daughter that makes sense too. Bottom line–you and Grandpa make it a team effort for taking care of your family and you’ve got yourself a winning situation instead of a fight. I know it sounds corny but it’s worth a try.

  473. Clifford on Wed, 25th Jan 2012 2:21 am
  474. Yes. they’ve both been with me since September and still to this day. The money is gonna be used for her. Eventually her healthcare for my child and the mother is going to come after me for money. Child support will also be a factor as well since the mother and I have not went to court about anything since shes been born. The problem that I have with the grandpa, is instead of talking me through it, he just flat out asked if he could claim her, i simply said I was going too, it turned into a fight and then he walked out saying he was going too. The only real proof I have is the mother who also lives with me. I’m pretty comfident she would tell the truth on where my daughter and her have been staying. Would that be good enough proof? We also have food stamps and her doctors have the address that is here. The mother just really wants to stay out of it and not be involved between the two of us. Its understandable cause she cares about us both. If she were to say alongside of me that my daughter has been with us since July even though it didnt say on paper she was with us, would that still be good enough?
    The real problem I have is I dont want this guy just walking all over me telling what he can and cant do when it comes to my child. As a guy, we do have pride and at times get a little pig headed haha. According to him he plans to give most of the money to the mother. But who’s to say he just gives her 600. What is he gonna do with the other 1 grand. He was talking about bills that need to be payed at his house. It’s not my daughters responsibility to make sure his bills are payed, nor is it fair when she doesnt even live there anymore. On top of things, he never had to buy her anything cause everything was already there for her. Thanks for the quick reply btw.

  475. tasha on Wed, 25th Jan 2012 3:29 am
  476. Ok I was divorced in 2008 we have shared custody of our 6 year old. No agreement in divorce papers on who is toclaim him. He pays 18 a week in child support but he has not seen our son since 2009 doesn’t even talk to him. He text me to inform me he claimed him on his taxes. Can he do that?

  477. brenda on Wed, 25th Jan 2012 8:51 am
  478. hello-
    I tried to file my taxes from home, The father and i share custody which is 50/50 I pay child support and medical insurance. I have the childrens 3 weekends out of the month and all vacation times, i also pay child care however i pay it cash so i cant claim that i pay that out on my taxes. The father claimed them and now i have to pay when i was going to brake even if i put the kids. however it was rejected because he claimed them. I have claimed them almost every year. what can i do. If i mail in my returns the only problem is that he registers them in school because thats when he has them. so i dont have all that information to provide the irs. what can i do?

  479. Todd on Wed, 25th Jan 2012 9:42 am
  480. My ex and I seperated and I moved out in July of 2010 and paid child support. I filed for divorce in October 2010 and it was finalized in May 2011. At our November 2010 court hearing we set up tempoary parenting plans and agreed through the court to file our 2010 taxes jointly, this is all in the courts minute entry. Our divorce decree later stated the same when finalized in May 2011, that we would file jointly for 2010 and share the refunds for our 5 children. My exwife chose to file herself and claim all 5 children for 2010 leaving me oweing over $4000 as I had been claiming our 5 children as dependentants all year. I have yet to file for 2010 as I can not afford the 4K and fear the IRS would guarnish my acount leaving me homelsss. I know I can go though the courts in hope they will order her to amend her taxes but they can order whatever they want, making her do it is another thing. I all ready need to go thought the court because per decree she was suspose to give me the first $2000 from taxes to offset the division of our property. I just want to fix things as to not owe $4000. Besides going through the courts what else can I do?

  481. kate on Wed, 25th Jan 2012 3:18 pm
  482. Hi there, another complicated situation… my ex-husband and I divorced in Jan ’09. We have 70/30 custody (I have the 70) and one child together. My fiance has lived with my daughter and I since Dec ’09. Last year my fiance claimed my daughter on his taxes, our return was greater if he claimed her (and our other daughter that we have together, who was born Oct ’10, for a total of 2 kids) than if I claimed my oldest daughter. I have a my own small business that provides us some extra income, less than $10,000. In October we received a notice that someone else, my ex, claimed my oldest. Now my ex wants to know if he should pay last years taxes and claim her this year or if he should keep last years claim and not claim her this year, however I feel he shouldn’t have claimed her last year to begin with and shouldn’t be able to claim her this year either. My fiance provides more financial support to her and probably makes half of what my ex does. My ex pays child support (always late and has made me wait on cashing checks because he has taken his girlfriend on vacation), but he hasn’t contributed ANYTHING outside of child support. No help with medical, dental etc. I have been reading online and it looks like because we have primary physical custody then we should be able to claim her, however my fiance and I aren’t “legally” married so I am not sure. When we divorced we didn’t use lawyers and I can’t remember if we agree’d to alternate years or if we said I get to claim her every year… however I KNOW verbally (which I guess means nothing) that he said I could claim her every year. Anyways I’m not sure what we do from here, I don’t think my ex should be able to claim either year, plus we CAN easily provide proof of my oldest being in our household for 70% of the year…
    THANKS!

  483. jill on Wed, 25th Jan 2012 3:49 pm
  484. Hello,
    my name is jill i have a question about taxes and unemployment and child tax credit etc… My daughters father and i have 50/50 custody meaning she is there two weeks and with me two weeks. we have a general child support order and we have no order for who claims our daughter on taxes except one year it says the fallowing: “Petitioner in person with atty Keiffer-Garrison, respondent in person with atty Schultz. Mr. Hawkins is to receive the exemption for the minor child for 2004. Visitation reserved, parties to confer. Parties reach an agreement, parties to prepare an order. JFB” there was only the order for 2004 no anything after we never spoke about if after that i have let him claim the tax exemption except for 2 years this being the second i have signed the 8332 every year not saying any extra years on it.. this year (the second year the first being in 08 i think) i am claiming her completely because he only has unemployment income for the last 1 1/2 years and he has 3 other biological children who he lives with and can claim the persons at hr block said it isnt going to help him claiming her as a tax exemption cause he already has 3 kids to claim maybe 4 his other childrens mom has a child from a previous marriage i think he claims so he says im in trouble my question is am i if there is no order? Ps we were never married and we havent lived together sense 02 the year our daughter was aborn and for the first year of life he claimed both of us then i claimed her for the next year and then kinda nothing was set til the 2004 year and thats the only year i live in illinois if you needed to know.

  485. jill on Wed, 25th Jan 2012 3:51 pm
  486. sorry and she is on my public assistance for food stamps and medical as im low income part time job and i take her to her doctors everytime not him i donk know if that helps but i forgot to add that in ‘

  487. Phillip on Wed, 25th Jan 2012 7:08 pm
  488. Well here we go.. My fiance has two boys 9and 10, there father decided to claim them on his return for 2011. He has never claimed them in the past, they do not have any agreement from the court, they were never married. Both boys live with each of them 50- 50 in 2011. he made no money and i am sure he received EIC.

    he does not pay for anything beside when the boys are with him( food and shelter), she pays for all the dental and health coverage.

    The only thing that he has is the kids address with the school is their fathers address.

    i read in code 152 when the children are with the parents 50-50 the tie-breaker is the parent with the higher AGI. Is this true and if so she wins?

    please let me know your thoughts

    Thanks

    Phil

  489. Pam on Wed, 25th Jan 2012 8:05 pm
  490. I have a friend who is married, but separated as of October 2011. The day he moved out, his wife changed the locks and would not allow him back in, despite the fact that he pays all the bills still. In any case, he now discovers that she filed her own separate tax return claiming head of household and claimed their 1-year-old. My friend is the one that had the dependents claimed on his W4, and now can’t claim his son on his tax return because she already did and took the refund for herself, filing separately, claiming head of household and the deduction for the child. That may be the case for 2012, but shouldn’t he still be the one to get that refund since he has supported the family, and had claimed the dependents on his W4, instead of her sneakily filing separately and receiving the refund for herself? Is there anything that can be done?

    Thanks for your input!

  491. Gloria B on Wed, 25th Jan 2012 8:07 pm
  492. I need to know if a married couple living together and has a child can one spouse file their taxes before the other even gets a w-2 and claim we are separated just to get a huge refund, by the way which left the other spouse to have to pay in a large amount

  493. Lori on Wed, 25th Jan 2012 11:31 pm
  494. My divorce was finalized in Sept, 2009. Our decree states my ex gets to claim our daugher for 2009 and 2010 but I get to claim her for the remaining 8 years of her childhood as long as I’m reasonably current with child support. I am 100% current with support and always have been. She claimed her, without question, for the past 2 years; however, I filed my taxes 2 days ago and it was rejected because “someone else” (her mother) has already claimed this child. I explained to my ex that she gets the EIC and HOH but I’m supposed to get the child tax exemption unless she takes me back to court and they modify our decree. I went ahead and filed without my daughter but what can I do about this? I called my attorney and he said that she’s in contempt of court. Please help!

  495. Jane Doe on Thu, 26th Jan 2012 1:38 am
  496. My oneyear old daughter father filed my child. My child has stayed with me all her life I take care of her daily expenses. Her father stays in Oklahoma my child never stayed with him. He’s a married pfc E3 in the military. Its not fair for him to file her and doesn’t take care of her.I cannot file taxes because he has already used her as a dependent. Is it anyway he can be forced to spilt the return with me? If so how do I go by doing this?

  497. Admin Roberg on Thu, 26th Jan 2012 2:46 am
  498. Hey Clifford,
    I logged out too early last night. You can’t have your girlfriend as evidence as to where your child lived, the IRS will not accept that. So don’t even try to pressure her because it won’t do you any good anyway. (And it’s probably killing her to have you and her father fight.)
    I still think you men folk should figure things out together. Maybe you claim your daughter and then you pay Grandpa back some rent money for the time you lived at his house and ate his food and used his shower, etc. etc. Or for being there for your girlfriend and your baby when you walked out on them for a couple of months.
    That sounded kind of like a slam. I’m not meaning to slam you, I’m thinking you’re a pretty decent guy–but I’m also thinking you’re a little blind to Grandpa’s side of things. You’ll never go wrong addressing a problem with love and compassion. I know that’s not tax advice, but trust me on this one, use your heart.

  499. Admin Roberg on Thu, 26th Jan 2012 2:47 am
  500. Hi Tasha,
    No, your ex can’t claim your kids. They are yours 100%. Claim your child. If the return gets rejected, you just paper file. You’ll win.

  501. Admin Roberg on Thu, 26th Jan 2012 2:47 am
  502. Hi Brenda,
    It sounds like the father has custody of the kids more than you do. The IRS will side with him. Sorry.

  503. Admin Roberg on Thu, 26th Jan 2012 2:47 am
  504. Hi Todd,
    As far as the IRS is concerned–your wife did what was okay. So, I think you’ll need a lawyer to go through the court to either get her to pay up or amend. (I’m not an attorney but is jail an option where you live? I mean really–she did defy a court order.)

    But let me address you other problem that I can help you with: You didn’t file. This is bad–you get hit with fines for not filing and fines for not paying and if you don’t file, eventually the IRS will file for you and oops–that’s the worst of all. So you need to take care of that. (You might want to find a professional to help you. There might be some deductions and things you didn’t realize you could claim.)

    And then you could try calling her bluff. This isn’t very nice, I shouldn’t be posting it on the website, but she done did you dirty and so you may have to fight back. (My apologies to any IRS agents who get stuck doing more work because of this.)

    You file your 2010 tax return as Married filing separate and you claim all 5 of your children. Mail it in. This throws everything into “audit” mode. Technically, per IRS rules, you’ll lose. And I always say never file a tax return you know you’ll lose. But it starts the audit process and your ex will get a letter. Now your 2010 court order means nothing to the IRS–I don’t know if your ex-wife knows that or not, but that audit letter is pretty scary. And, she did defy a court order to file with you.

    First the IRS will send her a letter saying, “Did you make a mistake? Do you need to amend?” You’ll get the same letter. Then it will be “prove it”. It could jar her enough to get her to amend and file with you the way she should have.

    Now she could be stubborn and fight and as far as the IRS rules go, she will win–which puts you back to going to court. This is not the best solution–but it sort of sounds to me like you don’t have a lot of options with her. Sorry.

  505. Admin Roberg on Thu, 26th Jan 2012 2:48 am
  506. Admin Roberg on Thu, 26th Jan 2012 2:48 am
  507. Hi Jill,
    It seems to me that you have your child 50% of the time. Technically, the person who has the child more should claim the child–but you’re right–if he’s got three other kids he’s already claiming what’s his problem? He sounds like he’s not a very nice person. Your daughter is listed n your public assistance, and you’ve got her medical. The important issue is where she goes to school. If her school address is your home, then I’d go ahead and file–that’s your proof. Good luck.

  508. Admin Roberg on Thu, 26th Jan 2012 2:49 am
  509. Hi Phil–
    If the children are with the parents 50-50, then the next tie breaker is the AGI and the higher AGI wins. Here’s your problem–how do you prove they were with your fiance? The boys school is with the father–that’s the number one proof there. So if you’re going to fight this, then you’re going to have to be able to prove more time with the mother.
    Many couples that really do have 50/50 agreements split the kids up–each parent claims one. That seems like a fair compromise.

  510. Admin Roberg on Thu, 26th Jan 2012 2:49 am
  511. Hi Pam–
    If a married couple is not living apart for the full last 6 months of the year then neither spouse is allowed to claim head of household status. This is important because if you file as married filing separate–which the only two legal options here for your friend and his wife is married filing jointly or married filing separate. A person filing a married filing separate cannot claim EIC–he can claim an exemption, but not EIC.
    What should be done: your friend should talk to the ex. She should amend her return, filing with him as married filing jointly and come to an amicable split for the money.
    What he could do–he could file a paper return, claiming married filing separately and claiming the child. This isn’t the big money EIC refund–but it alerts the IRS to his ex–and she gets the EIC audit and she won’t be able to prove she was head of household so she gets burned. This isn’t very nice, nor does it help your friend. But, it is an option.
    The whole point of EIC is to help families with children. If the wife is using the money to raise the child–he should be cool with it. If she’s using it to buy herself a new husband–well, that could be an issue.

  512. Admin Roberg on Thu, 26th Jan 2012 2:49 am
  513. Gloria–No, that’s not allowed on so many levels.
    1. If you are married and living together you have only 2 options of filing status–married filing jointly or married filing separately.
    2. If you choose married filing separately then you won’t get a big refund for claiming your child.
    3. If you lie and say that you are not living together and you file as head of household–that’s federal tax fraud.

  514. Admin Roberg on Thu, 26th Jan 2012 2:50 am
  515. Hi Lori,
    Clearly you understand the rules correctly–and you understand about splitting the exemption. Because your divorce decree has conditions–that is you being current on child support, you won’t be able to mail in copies of your divorce decree to just claim the exemption like you should. Your attorney is right, your ex is in contempt of court. I wish there was an easy way around it, but I’m afraid that your attorney’s going to be the one to solve your problem. Sorry.

  516. Jan Roberg on Thu, 26th Jan 2012 3:01 am
  517. Hi Jane Doe,
    You can’t force him to split the return with you–but you don’t have to–it’s not his money! Follow the directions in the post–paper file, etc. etc. You will win and you will get everything that is rightfully yours.

  518. Grant on Thu, 26th Jan 2012 3:09 am
  519. Ok my daughter was born in 2006 out of wedlock. I have joint physical and legal custody of my daughter. I also pay child support. N out court ordered document it states that I am to Claim on a odd years (2011). My ex just informed me she already intentionally claimed her. Now what do I do!?

  520. Jan Roberg on Thu, 26th Jan 2012 3:31 am
  521. Grant–read the post and follow the instructions.

  522. bev on Thu, 26th Jan 2012 8:17 am
  523. The last time I was able to file my daughter I think was 2004. Only because she had already been filed. She lives only with me and I provide for her. Her father send a very small amount of child support. But has never even seen her in the 14 years that she has been alive. She doesn’t know him or what he looks like. I don’t know who is filing her. It could be her father we don’t talk so I don’t know if its him. I have never fought this mainly because I didn’t know that I could. If I file her this year would I be able to get this year as well as the other years I didn’t receive because someone filed before me? And is 16 weeks the amount of time it would take to resolve this?

  524. Grant on Thu, 26th Jan 2012 10:50 am
  525. Which post? Will I win? My daughter does go to school in her mothers school district and half of the week I transport her to and for
    School-but she is equally with me just as much as her mother.

  526. autumn wilson on Thu, 26th Jan 2012 2:01 pm
  527. My husband and i went to file our taxes and one of our kids had been claimed(my stepchildren). his exwife claimed them. both boys live with us full time, in new Jersey and their mom lives in Hawaii. Joint legal custody is in the divorce decree(the y divorced in 2008) and it states that she can claim the youngest child. She has not claimed him since the divorce, because we did, because he lives with us and in the past year she has seen them 4 days. She pays no child support. i feel the law is on our side, however we can’t wait 16 weeks for our return. Can/should we file without him and get our return then later file an amended return causing an audit? Any information would be greatly appreciated.

  528. autumn wilson on Thu, 26th Jan 2012 2:29 pm
  529. she only claimed one of the boys…we claimed the other. it is a difference of $1000 to us. We have asked her to amend hers and she said no, she can claim him…it says in the divorce decree.

  530. Jan Roberg on Thu, 26th Jan 2012 2:47 pm
  531. Grant–
    If you read the directions at the top of this page–about mailing in the return, etc. But you just said that your daughter goes to school in the mother’s district. That’s going to be tougher on you because the IRS likes to use the school address for proof.
    Your job then–is how are you going to prove that your daughter was with you more? What evidence can you pull together that will be compelling enough to make the IRS change who gets her? If you can’t come up with some type of proof–then you’re not going to win the case and you’ll be wasting your time.

  532. Admin Roberg on Thu, 26th Jan 2012 3:53 pm
  533. Hi Bev,
    You’re exactly the type of person I’m trying to reach with this blog. You’ve been getting ripped off for years! It might even be your ex! You go ahead and paper file. It will take time, but you are in the right.
    You can go back and amend your returns as far back as 2008–but be sure to get your 2008 tax return in before April 15th or you’ll miss out on your refund that you’re due.
    Good luck! Remember, you’re in the right. You’ll get that scary paperwork but you just fill it out and you’ll be fine.

  534. Jan Roberg on Thu, 26th Jan 2012 4:01 pm
  535. Hi Autumn,
    Two things–one, you can go ahead and file now to get whatever refund you do have coming and amend later. This isn’t the best option in the IRS’s eyes–but it’s definitely the best option for people who have some refund coming and need the money now.

    But here’s the other thing: you might not want to amend at all. You say that the divorce decree allows her to claim the youngest child’s exemption, right? The exemption gets her the child tax credit and the exemption–no EIC or head of household status. You’re married–don’t need head of household status. And you say you’re losing $1000 by not claiming the child–to me it seems that you’re only losing the child tax credit–which is what she’s entitled to anyway.

    The divorce decree does not require child support–so she can actually attach the pages of the divorce decree to claim the exemption. She doesn’t need your husband to sign an 8332.

    If you fight, you will lose. Sorry.

  536. Keli on Thu, 26th Jan 2012 4:47 pm
  537. Hi,
    My ex and I were never married we have a 9 yr old child..back in 2007/2008 we wrote up an agreement with a lawyer stating child support, taxes etc.
    He gets her every Weds night and every other weekend. Are paper work states that he gets to claim her on taxes every other year and use the HOH status. BUT she lives with me and goes to school zoned for my home.
    This year he claimed the EIC and child tax credit. I spoek to him and he said our paper work states that he is able to do that. I told him NO he is able to claim her as an exemption on his years but that is all because she lives with me and I have proof of her going to school zoned for my house.
    Him doing this changes $ amounts by like $3000….if I do go ahead and amend my taxes and they do an audit…are both of us going to have to go through an audit?? Will they audit everything or just the EIC part?? I have a small in home business and it will be a hassle for them to audit everything if that is the case BUT I also do not want to hand over $3000 to him that he is not entited too???? HELP !!

  538. autumn wilson on Thu, 26th Jan 2012 4:49 pm
  539. Thank you so much. This is such a grey area for us. Nice to know how it will really play out.

  540. Keli on Thu, 26th Jan 2012 4:50 pm
  541. ps…I am married so the HOH is not what I would use anyway if that makes a difference

  542. autumn wilson on Thu, 26th Jan 2012 4:56 pm
  543. She is claiming head of household and getting eic from our son, but since we are not even if we do claim him i guess it doesn’t matter. We will file and think about amending. We will change the divorce decree also.

  544. Jason on Thu, 26th Jan 2012 6:45 pm
  545. My girlfriend and I live together and both support our daughter. Would it be allowed for her to claim EIC and exemption, but for me to claim Head of Household? She makes less so would get more money from EIC, but she can’t really claim Head of Household because I pay more than her for our Rent and Food, although she pays for child care.

  546. Lisa on Thu, 26th Jan 2012 8:53 pm
  547. Two of my children lived with me for 7 1/2 months last year. When I filed my return it was rejected because my x claimed one on his return. Since they lived with me longer am I able to claim them? I have dr’s records, school records and daycare records showing they lived with me. I also have a court custody order giving him custody on October. While I had the children he never seen them or supported them and I feel I should be allowed to claim them. And if so what number do I put on my return for how long they lived with me? My tax lady said 12 but I want the right number due to the audit purpose.

  548. Alice on Thu, 26th Jan 2012 11:04 pm
  549. So what are the ultimate consequences of the noncustodial parent filing as HOH fraudulently?

    I’m trying to figure out how to beat this court order that alternates years. I did not think it was fair a year ago when the judge decided this for us (we were never married and the only thing we had been in court for was the child support he did not want increased from $100 to $311 a month). And I really don’t think it’s fair now that I’ve done some research on it and see that it’s a quite common judgement. How can a lower court overrule a federal tax law that is in place to benefit custodial parents?

    This is a link to a summary of judgements that explains, pretty clearly, that federal law cannot be overturned in this way. Now I’m trying to figure out how to bring a case to our circuit court judge based on this.
    http://ldgorin.justia.net/article_27-1503896.html

    My question involves my son’s father intending to file as HOH with the dependency expemtion. My father is an accountant who does my taxes but my boyfriend’s parents are CPAs with their own business. So I have some good resources. Also, from the research that I have done, now understand how all this works (or should work).

    I called him last night to explain that, in order for both of us to get our returns processed quickly, he needs to only claim our son as a dependent while I file as HOH. He then tried to say I was trying to screw him over and he is going to get $5000 back.

    He has always been a real pain about tax refunds. One year he claimed our son after I had already filed but he never got caught. How the IRS didn’t catch that, I’m not sure. Honestly, I was trying to avoid any problems by letting him know how he should file. He told me today that 3 CPAs said we could both file as HOH (he has no other children) and he would claim our son. My reply was that isn’t right, we’ll be audited. My son lives with me and he stays with his father every other weekend and a lot of holidays. I have also not signed a 8332. I have concluded that I have every right to claim our son as a dependent, according to federal tax law. The contempt of court thing that you have brought up is stopping me from doing anything rash.

    Should I just let him file and see what he files before I do? I would like to catch him on this for my own good reasons I won’t get into but, like the other women here, there are a lot of poor excuses for men out there. I also understand this will hold up my return. My ultimate goal here is to squash this court order without actually having to go to court.

  550. Erica on Thu, 26th Jan 2012 11:27 pm
  551. My ex and I were divorced in 2005. In order to keep him from contesting I had to agree to 300$ (for two children) and he claim them every odd year on his taxes. I was looking through the paperwork today (due to my takes being rejected my tax lady prepared them as she did last year when it was my turn to claim them) It says that he is to have them from Jan 1 until June 31 and i have them July 1 until Dec 30.But he doesn’t have them at all he doesn’t call or anything. they did spend last summer and was made to go to “daycare” so that his wife could go to the gym (they were 10 at the time) and made to watch two babies under the age of two. Not to mention almost sending them to summer camp (at the time it was about 3 years since he’d seen them), So i guess my question is, would it be worth fighting for? Am I allowed to claim them?

  552. Judie. on Fri, 27th Jan 2012 12:24 am
  553. Hii. I Just had a baby 3 months ago. and i do not work but i am trying to get back in school. Her father has never bought a pack of diapers for her nor has he helped me take care of her. He has a job and gets paid two hundred and som change a week. He doesnt Give Me any of that money for her. My parents buy her everything she needs ever since i got pregnant. i am part of program were they help me get my life on track. i have my own appartment and they pay for everything for 2 years untill i get a job and move out befor the 2 years are up.
    well the point is that he wants to claim her on his taxes but iam afraid that if he does i wont get any money back for her. I dont have a job at the moment but would i be able to get taxes for het (just curious) i would let my parents claim her but he will get mad and try to take my parents to court , or what ever he says. He never comes visit her, i have to take the buss every weekend for him to see her. and even when i do he doenst spend no time with her. Can you just please give me an idea of what i could do.?

  554. Kristen on Fri, 27th Jan 2012 12:48 am
  555. I filed 2009 taxes using H&R block and they told me I didnt need to use form 8379. I got a letter from both IRS and California state saying all our money was taken to pay my husbands child support arrears. I was able to send in form 8379 and get half of the Federal back, but from what i read it was too late for state. for 2010 I used turbo tax e-file and I got all state back within 8 days(surprise!). I just filed 2011 on Tuesday, and am in great anticipation for state to come back again? Does california usually award all taxes back to the injured spouse? I hope so, and if so, im going to take my proof to H&R block!

  556. Chandi W on Fri, 27th Jan 2012 1:17 am
  557. Heres the question. In our decree from this year it states that I have full custody and 50/50 visitation and it shows that I actually have my son 183 overnights and he has 182 overnights. Am I able to claim the EIC and not get in trouble from the IRS? Thanks so much for your answers.

  558. Admin Roberg on Fri, 27th Jan 2012 2:14 am
  559. Hi Kristen,
    I honestly don’t know about California paying back everything to the injured spouse. But that’s totally cool! Generally, the injured spouse gets whatever tax she would receive if she was filing separately from her husband–but to be quite honest–California rules are pretty much different from every other state in the country. I don’t dare pretend to be a California expert.

    I can’t believe that Block didn’t have you file the injured spouse form before. I would take your return back and talk to a manager. They should make it right for you.

  560. Admin Roberg on Fri, 27th Jan 2012 2:19 am
  561. Hi Keli,
    You’re right. Your agreement can’t allow your ex to claim the EIC when he doesn’t have custody. You understand this.

    An EIC audit is about who has the custody–it’s not an audit of your business books. It’s always a risk that you’ll open up a can of worms, but really I wouldnt’ worry about that if you’ve got decent business records.

    Dot your “i”s cross your “t”s and go for it.

  562. Admin Roberg on Fri, 27th Jan 2012 2:25 am
  563. Hey Jason,
    Your idea is good but you can’t do that. Only parents that are separated can do that. Work together–only one of you can claim the child–you work it out–you can claim Head of Household. She work it out, she will claim single but with all the deductions. Whichever way makes the most sense for the two of you togehter is what you should do.
    But bottom line–because you’re together, you can’t split your exception.

  564. Admin Roberg on Fri, 27th Jan 2012 2:30 am
  565. Hi Lisa,
    You’ve got the right idea. The kids are yours to claim. I would put that you had the kids for 7 months, but–your tax lady’s software may have an issue with 7 and may require 12. (I had a problem like that a couple of years back with the software I used to use.)
    I honestly don’t think you’d have a problem if you said 12 (especially if it’s a software issue) but 7 is good enough if it works.

  566. Admin Roberg on Fri, 27th Jan 2012 2:38 am
  567. Hi Alice,
    You’ve done a lot of research and I’m sure you already know that I cannot give legal advice.
    My tax advice is: file now! Don’t wait to see what your ex is going to do because it sounds to me like he’ll mess you up. You know that you have a legal right to claim your kids for EIC and head of household. You know that’s your legal right.
    If you want to file for the exemption and the child tax credit–I’d talk to a lawyer and see what your odds are of a contempt of court issue. Good luck, I hope you win.

  568. Admin Roberg on Fri, 27th Jan 2012 2:43 am
  569. Hi Erica,
    My gut reaction is that you should go for it. As I understand it, your decree has conditions, that makes it invalid as far as the IRS is concerned. Plus–part of the condition includes your ex having custody and he doesn’t. I’m thinking you should fight for everything. (And you can go back as far as 2008.)

  570. Admin Roberg on Fri, 27th Jan 2012 2:50 am
  571. Hi Judie,
    I don’t have all the information I need, but here’s what I can tell you. Your ex doesn’t have custody of your baby so he can’t claim EIC or the child tax credit. You may chose to allow him to claim the exemption and the child tax credit by signing the 8332 form. It’s your choice–if you choose to do this, I’d make sure you’re getting something for it IN ADVANCE! He has to pony up or you don’t sign the form. Do not let him have the social security number until you’ve got something.
    Now about your parents. In order for you parents to claim your child, your baby would have to live with them. You cannot sign an 8332 form over to your parents. (Which is really too bad–I think that’s a law that they should change.)

    But–here’s an idea for you. Did you live with your parents while you were pregnant? Did you live with them for over 6 months during 2011? Because, you say you didn’t make any money. It might be possible for your parents to claim you as a dependent–and because of that, then it would be logical that they claim your baby as well. This might be an option for you.

  572. blanca on Fri, 27th Jan 2012 2:51 am
  573. My ex has been claiming my daughter for two years, i never saw a dime. Ive never sign anything. in 2009 he claimed her he never lived with him i have full custody. We decided to try to work thing out he filled my daughter in 2010 with out me knowing. The only thing about it is we have the same address for 2010 but we did not live in the same house. I lived in the studio and he lived the other house with his mom. How do i proof my daughter didn’t lived with him.. i paid rent bought my food, took care of everything. i think i only have a receipt from his mom. I was getting assistance for a few months. He paid child support we went to court living under the same address but we always clarified that we lived in seperate houses stating same address.

  574. Admin Roberg on Fri, 27th Jan 2012 2:52 am
  575. Chandi,
    Do you actually have the kids for one more day? If so, then go for it.

  576. Admin Roberg on Fri, 27th Jan 2012 3:07 am
  577. Hi Blanca,
    You’ve got a tough case. You’re going to have to prove that you lived in separate housing. You’ve got a receipt, but you’ll need to show a real year. Try checking your bank statements–did you write checks? How did you pay?
    I worked on a case very similar to this before and we lost. I just couldn’t prove she was separate–that’s going to be your big issue. In addition to the receipts for the rent, or bank statements showing you paid rent–you’ll want a lot plat or tax plan showing that there are actually two placed to live at that one address–or take a picture of the house versus the studio showing that they’re two differerent places. They’re not going to come out to look so you’re going to have to take it to them.

  578. Judie. on Fri, 27th Jan 2012 3:09 am
  579. well his name is not on the birth certificate and he doesnt know theher social so thats good. i didnt live with my parents. but they have all the receipts of everything they bought from day one. would that be of use?? but what your saying in order for him to be able to claim her i have to approve and sign?? he cant just do it on his own?

  580. Jan Roberg on Fri, 27th Jan 2012 3:28 am
  581. Judie,
    Your ex is “supposed” to have your permission to claim your child. Now you see how many people have posted about exes who claimed kids without permission–you get the picture. He’s not supposed to claim your child, that’s why I want you to guard that social security card like it’s gold.

  582. Jason on Fri, 27th Jan 2012 2:19 pm
  583. Jan,

    Thanks for your advice. I really appreciate it. I’ll claim single and let my girlfriend claim single and claim our child and get all the child deductions as she would get more money back than me claiming HoH and getting all the child deductions, based on her lower income and EIC.

  584. Mengo on Fri, 27th Jan 2012 7:35 pm
  585. Help me please!!!!!!!!!!!!!!!!!!!!!!

    Well, My ex and I have been separated for two years now and now we have joint custody and we both agreed to take turn claiming tax every other year. this year on 2011, she just decided to claim my son on my year which she have already claim him for last year and that really tick me off. I got mediation paper saying my son stay with me for the school year and she get him for summer. Which, in conclusion, that means I have him more than she do. Also on the paper it stated that I, the father, will attend to all of his medical and dental issues which makes me the primary. so my big question is, is there anything I can do to this unfairness and what can I do to stop my selfish ex from always doing this? I have decided I am going to call this joint custody off and decided to go to court and try to get full custody and might even file child support on her since I now have proof that she only needed our son just to gain some money or benefits out from my son. please reply back as I am desperately needing help!!!

  586. Katie on Sat, 28th Jan 2012 2:12 am
  587. Hello, i have a question. My ex husband wants to claim my son for taxes and i have sole custody and sole posession in our decree of both of our children. We had agreed to him seeing them every other weekend ( but he doesnt always take them).he pays court ordered child support $150 a week for 2 kids but he treatens to take me to court. Is is possible for him to get one of our kids?

  588. Amber on Sat, 28th Jan 2012 4:08 am
  589. In February of 2009, my ex and I separated. I worked nights at the time, and he worked days. Because of that schedule, I had our son all day, and he had him at night. In December of 2010, my ex filed for divorce and ran off with our son. He had a temporary restraining order put on him a week later to keep our son in the city, and a temporary order was issued two months later that kept the living arangements exactly as they were. He also ordered that we have a bonding and attatchment assesment done because we were both claiming to be the primary provider for our child. The judge said that if the assesment found to be different than what he ordered, we could petition for another hearing to have the temporary order changed.
    We had the assessment done, and it was in fact, in my favor. In May of 2011, I lost my job working nights, but because of the judges schedule, we could not have the hearing until July 7th. On that date, the temporary orderes were changed and I had our son five of the days and nights one week and he had two. In september, our divorce was finalized and the parenting time was kept the same.
    When I started to do my taxes for 2011, I wrote my ex an email to let him know that I would fill out and sign the form 8332 so he could claim our son on his taxes like we had agreed in our divorce decree. He claims him on the odd years, and I claim him on the even years. He wrote me back to inform me that I didn’t need to do that, because for tax purposes, he was the custodial parent this year. We have been arguing about it ever since and have both been doing extensive research to determine who is in the right. At first I had just assumed that since our divorce decree states very clearly that the child is scheduled to reside with me for the majority of the time and that I am the custodian for all federal and state purposes, that it would apply to taxes as well.
    We have both called the IRS and been given different answers as to who is the custodial parent. (I do not know what information he gave them). I was told that there is a special exception for parents who work nights. Over the entire 2011 year, I have had our son for almost 1,000 more hours than my ex did. However, up until July 7th, most of those hours came from day time hours. I only had our son over night on Sundays. He is not of school age yet, so I have no way to show that he would have been registered in my school district. After July 7th, I had the majority of the nights, and my hours passed my ex’s very quickly. I also called and H&R Block tax preparer who told me that I was the custodial parent based on the latest order from the court.
    When my ex called the IRS, he was told that he was the custodial parent because the original temporary orders gave him 6 nights out of the week, and it was in effect for more than 6months and one day of the year. I do not know if he informed them that I was working nights or that I had our son all day.
    From what I keep seeing through all of these posts, the IRS doesnt seem to care what is in a divorce decree. How do they calculate custody in this case? I have no argument with claiming our son as a dependent, I will let him have that like I agreed to. My only question is about determining custody. This is way more confusing than I anticipated it would be. I have a constant headache trying to figure this one out!
    On a side note, he is already remarried and is able to claim four other children on his taxes as dependents and for the EIC. At this point, I just feel like he is being greedy.

  590. Scott on Sat, 28th Jan 2012 4:25 am
  591. Question I went to court earlier this year for my two daughters (who live with their mom) and in the court paperwork it states that I get to claim my oldest starting in 2011 tax returns….Today I went to file and it got rejected saying someone has already claimed her which I would say that would be her mom….Is there anything I can do about this since it is stated in our court paperwork that her mother agreed that I get to claim her?

  592. Kristin on Sat, 28th Jan 2012 5:01 am
  593. Hi Jan,

    I have read most of the posts on this blog and am feeling much more at ease about my situation. I guess I would really just like another few encouraging words about the probably outcome.

    My husband and his ex-wife divorced in April of 2008. They seperated in 2007 and in November of 2007 we were living together. My husbands son was living with us at the end of that year and his daughter was living with his ex-wife. They filed a return together for 2007. By March of 2008 my husbands daughter came to live with us. At the time that the divorce decree was being drawn, it stated that my husband had physical custody of their son and his ex-wife had physical custody of their daughter. By the time the divorce was finalized, their daughter had already moved in with us.
    We never changed the way the decree read because we are all very amicable towards one another. We also were aware that she did not make much and that child support would be really hard on her. So we never changed it.
    That year my husband and I claimed both children. I claim 1 dependent on my W4 and my husband claims 0. This is how we have continued to do this. My husband and I have claimed both children ever since.
    That brings us to the present: I attempted to file our taxes last night and awoke this AM to a rejected return due to my step daughter having been claimed on another return. My husband called his exwife and she confirmed that she had claimed their daughter. Our kids live with us, we take care of all of their needs, and our daughter only goes to her mothers 3 weekends a month and 4 weeks out of the summer. Our son probably only goes 1/2 of that time to his mothers.
    I just want to feel reassured in that I am going to send the IRS my return by mail, claiming both children. Should I send the proof with return? Or should I wait until they ask for the information?

    Thank you, Kristin

  594. Samantha on Sat, 28th Jan 2012 3:45 pm
  595. I’ve been reading all the posts, and I think I know the answer, but I want to be sure. Our situation is pretty unique. In May 2011 my husband and I got a call from Child Protective Services (CPS) telling us that my sister’s children needed a place to stay for a “little while”, so CPS put them in our care in what is called a Kinship Placement. There was no legal custody arrangement at that time. That “little while” turned into just short of eight months (May – December 2011). In November 2011 my sister was given permission by CPS for the children to stay with her on the weekends & holidays only. I’ve added the nights the children stayed with us, and my husband and I had the children in our care for 211 days. One day while having a conversation with my sister, the tax “situation” came up. My sister informed me that she was going to file the children on her taxes. I had already done some research, and even called the IRS to find out if my husband and I could file. They said yes. So, I told my sister what we were told, and it got UGLY. Now, its no big surprise that she has filed the children on her taxes. I have printed our taxes out, and will be mailing them out ASAP. I understand that I will need documentation to prove that we had the children. I can get school records showing that the 4 year old was enrolled in Pre-K while with us, and I can get the doctor to write a note stating that the children were in our care from May – December. I am going to get a letter from the daycare for the 2 year old, and I am also going to get CPS to write a letter stating that they put the children in our care for this period of time. Should I also get a letter from our church stating this? I saw that you mentioned this for others, but is it a letter or a form that they fill out? I know that I will probably have enough to prove my case, but it really eats me up that my sister did this. The sad thing is, not only did she and her boyfriend NOT have the children for a minimum of six months, she did not provide a single dime to assist us while we were caring for her children. And to top it off she was bragging about what she was going to do with the money – and it is NOT going to go towards the care of the children. Is there anything else that I can/should do? Is there a reason why my husband and I really couldn’t file the children on our taxes? Thanks in advance for your help!

  596. shawn keeling on Sat, 28th Jan 2012 4:50 pm
  597. my ex-wife and I live in two different stats. We have a court order the states that i claim her on odd yr and she claims on even yr. she dose not live with me nor did she come up for summer break (only because her mother did not put her on the plane after i bought the ticket) i had my taxes done and tryed to claim my child and was rejected because her ss# had been clamied. what can i do

  598. Admin Roberg on Sat, 28th Jan 2012 11:35 pm
  599. Hey Mengo,
    You’re really mad at your ex right now and rightly so. You’ve got the proof that your son lived with you for more than half the year so go ahead and file the paper return and get the process rolling. As you can tell from many of the posts already here, there’s not much you can do to prevent it from happening again. But keep good records and all that good stuff.

    And you’re really mad! You’re talking about calling off the joint custody. First–get the tax thing straightened out. After you get that taken care of, do some serious thinking before you try to take away the joint custody. It sounds like she was being greedy and selfish–but what would it do to your son if he couldn’t see his mother any more? There must be some good in her if you had a child with her, right?

    Tax time is stressful and money makes people do stupid stuff. Please wait until you’re not stressed before you make any major decisions about custody. It’s okay to be angry (she did wrong) but make your decisions based upon the love you have for your child (oops, I’m getting off of my tax advice track, sorry.)

  600. Admin Roberg on Sat, 28th Jan 2012 11:37 pm
  601. Katie,
    You can split the exemption with your husband. Here’s info on that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

  602. Katie on Sun, 29th Jan 2012 3:37 am
  603. the thing is, is i dont want to split it with him. all he sees the kids as are dollar signs so he wants to take me to court. but he is also behind on his child support and has been for the past 2 years. he blows off seeing them all the time and i have them all year long and provide all of there needs. im just wondering if he would have a chance in court or would i win?

  604. tx.tazor on Sun, 29th Jan 2012 8:04 am
  605. Niece and 2 great-nephews lived with uncle. Niece doesn’t work and stays home to care for the infants but is working on GED. So-called father of children wants to claim them on his taxes ( uncle claimed niece and the first child for 2010, second child came in 2011). Until midyear 2011 they were on good terms. He did give money last year, sporadically. $40 a week now and again is not sufficient to raise children. His family says he has the right to claim them since he is listed on b/c. It is now apparent that the children are only viewed as $ signs to his family. This guy graciously accepted help from this uncle for phone bills, car repairs, transportation needs, gas money, food, went along on vacations, family outings, etc. etc.; This uncle treated him like family. But eventually showed his true colors to our family. Anyway…
    No court order in place last year (court ordered child support and visitation started this year, 2012 and he’s already in the negative due to back childsupport).
    Back to children, limited proof of residency given their ages. Insured under someone else (tax preparer stated this was not relevant).
    Question: If he decides to pursue further will the IRS’ tie-breaker be in his favor since he’s the “parent” with AGI?
    Uncle’s understanding is NCP can legally claim them, but morally shouldn’t.
    The uncle will continue to help support them, regardless, because that’s what families do when one needs help; because that’s the right thing to do.
    Mother always said, “be not hesitant in helping those in need today, because tomorrow it may be you who needs help”.
    Looking forward to your professional opinion.

  606. Lauren on Sun, 29th Jan 2012 9:08 am
  607. Hi I really hope you can help me! My ex pays little to no child support for our 2 1/2 yr old born 5/2009 and in court I agreed to let him claim her this year (2011 return) because it was going to cost too much to fight him in court. This will be his first year claiming her as an exemption. Now, when I fill out my return (on TurboTax), when it asks me if I have a child, do I answer “no”? Are answering yes to all of the questions about having my daughter more than half of the year and paying more than half of her support different than making her an “exemption”? She lives with me 90% of the time and I have full custody but like I said her father is claiming her on his 2011 return (per court order) so I don’t want to do something that will get me in trouble! Thank you for your time! It is greatly appreciated!

  608. Teresa on Sun, 29th Jan 2012 9:58 am
  609. Hi i have a question i have been divorced from my ex since 2002 in our decree it states the parents are to split years in claiming my son if the other parent does not have income to file their year the other parent may do so i just started claiming my son in 2009 and 2010 and now for my 2011 due to his father who he resides with half the yr does not file his taxes due to no income and i have just started to make my income he was letting his daughter and other family members claim my son the other years. now i filed my 2011 and got a review letter. I know for a fact he did not claim my son so im guessing he let someone else claim him again,(i do not have a good talking relationship with my ex husband ) was i in the right to claim my son or will i have to lose my credit. i have filed as married the last 5 yrs since i remarried in 2007 but my husband is on the top of return does this effect the decision for the irs since he is not my sons father or do i still have the right to claim my son on our return if someone other than his biological father is filing claiming my son?I support my son half the yr as well as his father but my son attends school where his father resides.out of me and my current husband i had the highest income as well i dotn know if that is a factor as well please not sure what i can do in my situation should i fight the claim or let whoever claimed my son claim him??

  610. Admin Roberg on Sun, 29th Jan 2012 12:46 pm
  611. Hi Amber,
    You know your tax rules about your child. You know it because you’ve had to learn it, am I right? I should hire you to answer questions here for me. You’re absolutely right about the exception for a parent that works at night. Here it is, right on page 28 of IRS Publication 17

    Parent works at night. If, due to a parent’s nighttime work schedule, a child lives for a greater number of days but not nights witht he parent who works at night, that parent is treated as the custodial parent. On a school day, the child is treated as living at the primary residence registered with the school.

    So, you should go ahead and sign th 8332 and give it to your ex–it’s what’s in your decree. Assume he’s claiming the kids–because I’m sure he neglected to mention anything about your night job and his tax person went–”Oh, he’s got custody because he has more nights,” and you’ll be doing the paper return and stuff. (Try to e-file first, but my guess is he’s already filed.)

    But you’re right! And you’ll win. And just remember as you’re arguing–your mantra is, page 28, chapter 3, pub 17. Pub 17 is like the IRS Bible.

    Be prepared to get jerked around on this–because you’re dealing with one of those weird, rare rules, but don’t give up. You are in the right.

  612. Admin Roberg on Sun, 29th Jan 2012 12:54 pm
  613. Scott,
    You are supposed to claim your child but your ex did instead. She is supposed to sign the 8332 form for you so that you may claim your child. Because of the date on your divorce decree you can’t use that to file your taxes.
    First step, nicely ask your ex to sign the 8332 form so that you may prepare your taxes properly. (Nicely.) Gently remind her that it’s in the divorce decree. Remember, with an 8332 you only get the exemption and child tax credit, not head of household or EIC.
    If she doesn’t comply, you may need to contact your attorney about her being in violation of the court decree. You won’t get anywhere with the IRS based on your doucments.
    Before you do any of that, figure out the dollar value of what you just lost so you know what the fight will be about. Sorry I couldn’t be more help.

  614. Admin Roberg on Sun, 29th Jan 2012 1:01 pm
  615. Hi Kristen,
    You know the answer–go for it. You’re in the right. The divorce decrees may say she has physical custody of the daughter, but the reality says that she didn’t. You’ve got the school records, health records, because you’re the custodial parent. Don’t be afraid, you’re doing the right thing. (I’m not going to say “good luck” or anything like that because you don’t need it.)

  616. Admin Roberg on Sun, 29th Jan 2012 1:02 pm
  617. @Kristen–
    Okay, good luck anyway. (Just to be on the safe side.)

  618. Admin Roberg on Sun, 29th Jan 2012 1:12 pm
  619. Hi Samantha,
    You’re doing everything right. The reason I sometimes mention a letter form church is for people who don’t have anything else to use as proof. And you’ve lined up your ducks very nicely. If you have something from CPS showing that they put the kids into your care–well that would be perfect. And everything else you have is great too. Sounds to me like those kids are lucky to have an Aunt Samantha.

    Oh–and for people who do need a church letter–there is no special form. You just ask your pastor or church representative to write a letter saying that you’re a member and you attend services with the child on a regular basis (or whatever program you do with your child at chuch.) If you’re a church goer, then your church probably knows that you have custody of your child, that’s why I put that down as a recomendation for people who don’t have school or medical records.

  620. Admin Roberg on Sun, 29th Jan 2012 1:16 pm
  621. Hi Shawn,
    I don’t have all of the information I need about you, but this post might give you your answer: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    Bottom line, some people can use their court documents to file with the IRS, some people can’t. That other post gives more details.

  622. Admin Roberg on Sun, 29th Jan 2012 2:04 pm
  623. @Tx.tazor,
    You asked for my professional opinion–my professional opinion is that I like your mother, she’s right. Oh wait, you meant tax opinion–sorry (but I still like you’re Mother.)
    Anyway–you are the child’s custodian. You have a biological link to the child so you pass the relationship test. And you’ve got the time test. There is no tie-breaker here, the exemption is yours.
    Now–be prepared for a potential problem. I had to really fight once for a great uncle before because the (insert expletive here) IRS agent did not understand the biological relationship rules. (She didn’t understand the term “descendant”.) But, we did manage to push through to a manager who settled it for us. You are in the right to claim the boys. (I’ve got the audit scars to show for it.)
    And although it’s more difficult to prove residency with little kids, I’m sure you’ve got something to show for it. If nothing else, the father has nothing. So whatever you’ve got is going to be better. How’s your photo album? Got pictures of the kids in their room?
    And what about that court order? It says the the ex owes child support and has visitation rights–that implies that he is not the custodial parent. Use what you’ve got. The court documents don’t guarantee who gets to claim exemptions–but you’ve got a court document that shows who has the custody of the children. I think you’ve got your evidence.

  624. Admin Roberg on Sun, 29th Jan 2012 2:08 pm
  625. Hi Lauren,
    You need to read about splitting an exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    Your ex can claim the exemption, but you can claim head of household and EIC (if you qualify.) That other post will help you through it. You need to sign a form 8332 for tax year 2011 and give it to your ex. Good luck.

  626. Samantha on Sun, 29th Jan 2012 2:18 pm
  627. Thank you so much for you advice. It is nice to have confirmation that I’m not misinterpreting the rules set forth by the IRS. I don’t know what will happen with the kids, but that’s another story for a different day.

  628. Admin Roberg on Sun, 29th Jan 2012 2:23 pm
  629. Hi Teresa,
    You have 50% custody of your son. He’s your son. YOUR SON! It doesn’t matter if your new husband is not the biological father because that’s his step son. STEP SON! Even if you and your current husband get a divorce, you child will forever be his step son.
    Your ex–the biological father, did not claim you son (or at least he says he didn’t.) So whoever did claim your son–your son who lives with you for 50% of the year has no right to claim your son.
    Let the IRS send them the “Oopies” letter. Let them try to fight.
    Here’s a question to ask your child, “When you’re not at Mommy’s house, where do you live and who else lives there?” I’m guessing you know that answer already, you’re the Mom.
    If your childs says Gramma lives there too–okay then maybe Gramma claimed him. You share 50/50 physical custody–but the tie goes to that parent–you win. If nobody lives with your ex that could claim your son–well then you win. I’m having a hard time finding an example of where you’d lose (unless of course your ex really did claim him and he’s just lying about it.)
    I say fight.

  630. Jan Roberg on Sun, 29th Jan 2012 3:23 pm
  631. @Katie again,
    Sorry, I missed your second note before. I’m not an attorney. Because of my licensing, it’s against the law for me to give legal advice. I have to tell you to talk to your lawyer. I have no idea what would happen in court.
    As far as the IRS is concerned–you win claiming the children on your taxes and I wouldn’t be afraid to claim them. Good luck.

  632. Kristin on Sun, 29th Jan 2012 4:30 pm
  633. Jan, should I send the proof that she lived with us all last year with my return or should I wait? Kristin

  634. Trell on Sun, 29th Jan 2012 8:06 pm
  635. what do i do .. my ex claimed my 2 kids… he just started paying child support (couple months back) but he doesnt have the right too claim them .. custody is in 100% in my way . he haven’t seen them in over year ?? what do i ??

  636. Jan Roberg on Sun, 29th Jan 2012 8:54 pm
  637. Hi Trell,
    You’re going to file a paper return, just like I explained in the main part of the blog post. You’re going to have more questions though, because I don’t have enough information from you. Like–when did you divorce or what year is your custody agreement? Does he have a right to claim the exemption? And stuff like that. Some of your questions can be answered here: http://robergtaxsolutions.com/2012/01/eic-help-page/

    But the bottom line is, you’re going to file a paper return to claim your kids.

  638. Jan Roberg on Sun, 29th Jan 2012 8:57 pm
  639. Kristen,
    Don’t send proof with your tax return. They’ll just lose it. Don’t send them anything until they specifically ask for you. (But you might want to get it organized now because you know it’s coming.)

    PS: That’s not just advice for Kristen–that’s advice for anybody who has to file a paper return and they know they’re going to have to eventually prove custody. Don’t send your paperwork with your tax return–the people opening those envelopes will just lose it. Instead of making your case go faster it will slow things down. And remember–never send the IRS your only copy of anything, always make a copy first.

  640. Sheena on Sun, 29th Jan 2012 9:26 pm
  641. Oh this is a life saver! Thanks for the information!!!!!!!!!!!!!
    In my case, my husband has exactly 50/50 of his son both physically and legally. I’m so glad we have kept up with all our medical receipts, daycare, etc. Last year we didn’t claim our son, because we thought we didn’t have enough proof to claim him even though we did rightfully. Now we have plenty of proof and legal papers of the custody. And I’m positive my husband has a higher AGI than his ex too. SO we meet all the requirements/rules/regulations! I’m so excited. We can now start a huge education fund for our son!!!!!

  642. Jan Roberg on Sun, 29th Jan 2012 9:41 pm
  643. Thanks Sheena,
    Good luck with that education fund (which reminds me–I’ve got to pay tuition today.) Just a plug about saving for college–I know people always talk about Section 529 college savings plans for their kids but I’m a big fan of Roth IRAs. 1. You don’t get any tax break, but when you take the money out for college you don’t pay any tax. 2. If your child doesn’t go to college, then you’ve got a retirement nest egg, and 3. Most colleges don’t take into account money that’s in a Roth when they’re computing how much you can pay towards tuition (they use the 529 money though.)
    Here’s more information: http://robergtaxsolutions.com/2010/07/saving-for-college/

  644. Sheena on Sun, 29th Jan 2012 9:59 pm
  645. Thanks a lot! Gosh you are so smart! Thanks for the tip! I’ll look into that!!!

  646. Amber on Mon, 30th Jan 2012 12:32 am
  647. Thank you so much for your reassurance! I was able to e-file and my tax return was accepted! Hooray! I also filled out the form and gave it to him, but I have a feeling he will still try to claim our son for the EIC. Let the fun begin!
    Thanks again! :)

  648. JesB on Mon, 30th Jan 2012 1:05 am
  649. My ex got divorced in 2011 and before aug 2011 we had joint custody. Last year we were to file together and then split the return, but he decided to go behind my back and claim the kids. he filed head of household. He was given primary in aug. But they did not live with him but lived with his parents. I went ahead and claimed the children this year on the taxes bc last year i had shared custody. He recently found out and said I would be facing jail time. He keeps threatening me and I am unsure what to do. I have not yet recieved my refund but am suppose to within the next week or so. I am wondering what I need to do to rectify the situation. He does not support the children rather his parents. The issue of taxes was reserved for court at another time. Please help!!! We had agreed on things in mediation and now he is saying that it is all his money and I will go to jail and what not. Thanks for your help.

  650. Katie on Mon, 30th Jan 2012 1:27 am
  651. Thanks so much for all your help! :)

  652. Admin Roberg on Mon, 30th Jan 2012 2:08 am
  653. Hey JesB,
    First of all–you are not going to jail. I haven’t seen the IRS throw an actual parent in jail yet for claiming a child. (By the way, if anybody knows of anyone who’s actually been thrown in jail for EIC–a parent not an actual scam artist–they do go to jail, please post about it to give the rest of us a reference point. Thanks.)

    Now–how bad were you? I’m a little confused about last year and this year (occupational hazard, it’s 2012 and I’m working on 2011 taxes. I never know what year it really is.)

    So–lets say you lived with your children through August until the divorce–then you had custody for over 6 months and you have no problem–okay you have a problem but a chance of winning.

    But–let’s say you and he lived apart and he had them for a week and you had them for a week up until August–then you’ll lose because you can’t prove you had them for over 6 months.

    The parents could claim the children if the parents don’t, but a parent did (you!)

    So, my thing is–first figure out if you really had a legitimate claim to the kids. You might want to contact a lawyer–I mean–he was granted custody but then he gave the kids to his parents? Is that cool with you? Are they good people? If they are good people, and they’re the ones supporting your children, maybe they should claim the exemption.

    When you get your refund, stick the money into a savings account. Don’t touch it until you figure out what the situation is. You might want to sit down with a tax professional–do you really have a claim–if not, what’s it going to cost you, and how to pay it back. If you amend your return before April 15th, there should be no fines or penalties.

    Don’t be bullied. That’s why you want a pro on your side. (I once had a client I couldn’t help–he needed a different kind of expert and I recommended him to someone else. He wanted me because he thought I’d do a better job of “beating up the IRS agent.” I don’t beat up IRS agents, or anybody for that matter, but you want a pit bull type person who knows the law and won’t back down.)

    Here’s a link to find someone in your area: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx

    Good luck. Be prepared for the worst, but stand your ground if you’re in the right. You won’t go to jail. And remember your pit bull, grrrrrrrrrrr!

  654. Admin Roberg on Mon, 30th Jan 2012 2:09 am
  655. @JesB–okay the grrrrrrrr was really lame. Sorry.

  656. JesB on Mon, 30th Jan 2012 3:48 am
  657. What is the process for all of this. I mean I have paper work that is dated sep 28 2011 that aug 28 2011 he was given full custody. My return has been accepted. He told me not long ago that he was faxing things to the irs. Thanks again for your help!

  658. Julie on Mon, 30th Jan 2012 6:47 am
  659. I have a unique situation. My daughter is 13 years old and has never had a SSN although she is a US citizen. I have applied for one for her and hopefully all will go well and she will receive a number so I can add her to my 2011 return. Her dad and I are divorced. I would like to amend my last 3 years of returns to add her since I have always had primary custody. How does this process work? Will it raise flags?

  660. starr grace on Mon, 30th Jan 2012 7:28 am
  661. ok…. i went to file my taxes and of course it was rejected… someone claimed them. i have had my kids from the time they were born up until august 2011….. which means 8 months out of the year 2011 i had them. during that 8 months i received state benefits, i.e. foodstamps medical and cash benefits which is all i have to prove i provided care for them and that they were in my household. (and a lease) when i went to the agency for proof that said their system had been updated and that they had no information past nov. 2011. what can i do. we have joint custody but i have had them.

  662. Stephen on Mon, 30th Jan 2012 9:20 am
  663. I filed my taxes electronically, and the IRS accepted the return and on the IRS website it stated I would receive my refund by Jan. 30. I have a 2 year old daughter who has lived with me for more than 6 months in 2011. I have visitation, and the visitation is every other week, so I have her technically half of the year. The mother and myself have never been married and there is no document in any court file stating anything about who can claim our daughter as a dependent on our tax returns.

    My daughters mother called me and told me that she just finished filing her taxes at H&R Block and that she was going to receive about five thousand dollars because she said that she claimed our daughter even though I told her prior to the tax season that i was claiming her. I informed her that her return would be rejected by the IRS, yet she called me a liar. Two days later she called me and asked about what I filed. I told her I filed for all credits. She told me that her tax agent contacted IRS and that IRS told them that it was illegal for me to claim our daughter. I pass all of the tests which the IRS uses to determine who can claim what on their return.

    Recently, I checked the IRS site, and it is now saying that my return is being reviewed and that I many not receive part of my return until I send them back their paperwork which I am waiting on to arrive. I then called the IRS to question the incident as I saw it from their website. The agent informed me that I have the CP75 code, meaning they will retain the EIC portion of there fund until they receive documents supporting my claim proving that my daughter is in fact my daughter, and all of the other tests.

    The other day, my ex called me and stated that H&R Block told her that the IRS has given her the opportunity to claim our daughter now. She said that she will now be claiming our daughter and that the credits and the EITC will be hers and there is nothing that I can do about it.

    I have done an abundant amount of reading online about CP75 and other tax related laws pertaining to EIC fraud and the likes. I informed my ex that if she did in fact file and the tax prepared allowed her to file, under what I would believe false pretenses since her return was originally rejected because she used the same childs ss number as I did, then they both would potentially be in trouble.

    Also, I question her statements, I do not believe the IRS tells anybody about who claims what on their returns due to the privacy laws, especially under taxes and social security.

    A question. If my ex concocted a believable enough lie and told it to the IRS, would they automatically take her claim over mine without any evidence except for what she tells them?

    Also, I have church records, facebook posts, a lease with my daughters name also on it, babysitter receipts, legal documents, calendar dates, some hospital bills, and photos, all of which which show the dates that my daughter resided with me.

    As for the photos, would the IRS accept photos as documented proof if the photos are saved from my phone with the date and time stamp and I can prove the location? I have around 300+ photos of me and my daughter from 2011. Will this be sufficient evidence to prove my case or to prove an affirmative answer to the questions in the CP75?

  664. Cesar on Mon, 30th Jan 2012 10:32 am
  665. Hi.
    Thank you for taking the time and reading and replying to my questions. So where do I start. I have been legally separated since 8/2005 My divorce was finalized on Oct. 2009 in Washington State.
    In my divorce decree the ex wife and I agreed to claim credit for child every other year. Which we had been already doing this for the last 6 years any how it was an easy decision.
    I was alotted odd years as she was given even years. I didnt claim my son at all last year 2010.. I went to file my taxes this year and it was DENIED. Due to the fact that she had already claimed EIC. I called her and initially she stated she did not claim him then she changed her story that she did. But that I could claim another credit for Cruzito. The Child tax credit? what does this mean and what makes it okay for her to do this.
    I pay my child support, I am current on this. We share him I get him 5 days one week, one day another and rotates.. So approx. 10 days out 8 month. Then I got him for 7 weeks during Summer breaks and 2 weeks for family vacation additional. I also got him for 2 weeks during christmas break, and 10 days of holidays share. I calculated that I actually physically had my son just under 187 days out of the year 2011 because we didnt always abide by the parenting plan and our son wanted to stay more time with me then go home. She was in agreement when I did keep him extended time.
    I have tried to talked to her and rationalize this situation, and let her know she is wrong for doing this… but she wont listen and is steadfast on keeping her return.
    So is the best thing for me to do.. with the facts above to file contempt 1, and 2 go ahead and file paper claim and just go thru this regamaroar with her.
    According to divorce decree and parenting plan, no one is the “custodial parent”
    I was the “petitioner” of the divorce. But we spend almost equal amounts of time with our son. What do I do?

  666. josh on Mon, 30th Jan 2012 12:03 pm
  667. I started paying child support on Sept 3 2010 and in that child support decree it says I get to claim my son for tax dependency purposes if I’m in substantial compliance of my support order and health care obligations, however I fell behind on my support because I was laid off this winter and now my x girlfriend says she is claiming my son because I was not compliant with my order. I called the csea to ask if I was compliant and they will not give me a straight answer. I have carried health insurance on my son and paid most of my support for the year and he stays with me part time, his mother lives with her parents, so has no bills and is on government assistance therefore sheds out hardly any of her own money to support our son. Should I claim my son for dependency purposes or is that impossible without the 8332 form. This website is the first I have even heard of this form, so does that make my child support decree useless? I want to ensure for future years I will get the benefit of claiming him because I support him and that’s my right I do not plan on trying to get the head of household credit or EIC because I’m not the costodial parent. Please help me! I’ve tried contacting everyone with this question and it seems no one wants to give you a straight answer on what your right is and what to do. Thanks in advance for your time.

  668. enivelys on Mon, 30th Jan 2012 2:50 pm
  669. Hi! I got divorce in the 2008, and my ex be claiming our son. I don’t work..I get ssi. And he does work..be when he claimed my son he doesn’t tell me, and always give me some of the money when he wants.I have papers stating from his lawyer that he has no right on claiming my son for taxes, due to the fact that he doesn’t live with him.I have residencial custody..and he only see my son 2 day a week. I want to know if he can claimed my son?

  670. lela on Mon, 30th Jan 2012 6:47 pm
  671. Hi,

    Me and my ex are separated and we have 2 kids together we both agreed that I would carry one and he carry the other ( both kids live with me but he gives me money for them every month that is not court ordered) he was audited last year but there was no way he can prove our son lived with him (school, daycare, doctor etc is all my address) so he wasn’t able to get a refund for her. My question is I will be filing both kids this year but can I do an amended return from last year adding our son that he was audit with?

  672. suzy on Mon, 30th Jan 2012 7:01 pm
  673. I got divorced in 1997 and realized i have not been claiming my son since then. now im reading that maybe i should be. the divorce decree says he claims him every year and i claim our other son but the laws state he has to be living with his dad for more than 6 months out of a year and has not been. i already filed on saturday and dont have notice that its been accepted yet but what do i do? if i can claim him i will get more money in return. do i file an amended return. i did it online using software.

  674. Krissy on Mon, 30th Jan 2012 8:37 pm
  675. My husband has been divorced from his ex wife for 11 yrs. We got married last year and this year we filed our taxes, in which we claimed their son (per their divorce decree he gets to claim him every other year – odd years), anyway, we claimed him and I guess she went to claim him as well, and called pissed off. She is now saying because he is ‘behind’ on support (medical bills is the ONLY issue, he has been regularly paying child support for over 4 yrs each month), that WE do not have a right to claim him. I think it’s because she’s pissed that were married now, and figures she can use the ‘single mom’ card. I have read some articles about how the IRS doesn’t care about what court documents say – what would you say we should do? He has claimed him every odd year EVEN when he was behind, but now that were married she has an issue with it (I think she realizes since he won’t be filing head of household she will get less money – all the refund always goes to her anyway). Not sure what to do – if anything. Any suggestions?

  676. suzy on Mon, 30th Jan 2012 9:44 pm
  677. also im not sure if i filled out an exemption for child custody back then to the irs. if i did am i out of luck on this deal? he barely works and doesnt pay child support nor any other expenses all year until dec every year he pays in full his back support. just so he can get his tax breaks on his son.

  678. Crystal on Mon, 30th Jan 2012 10:17 pm
  679. I went to H&R Block last week to file our taxes for 2011 and we have an agreement with the ex wife that we get to claim the child (1) every other year. Now, 2011 was our year to claim. When we did the efile, it got rejected that someone else claimed that SSN. We contacted the ex wife and she said that she hasn’t even done her taxes yet. What other possibility could it be if the ex wife didn’t do it? I’ve already filed for the other 2 kids and what not, but I’m upset that my return went from $5200 to $3500 becuase of (1) child dependant. I plan on filing the “Appeal” after I receive my first federal return. What should I do? I am angry that the ex is lying to us…but what else could it really be? Any help would be great. Thanks

  680. Crystal on Mon, 30th Jan 2012 10:17 pm
  681. Oh, and what form do I fill out to file an “Appeal”?? :) Thanks,

  682. Samantha on Tue, 31st Jan 2012 12:03 am
  683. I have another question. This may be more of a legal question, but I thought I’d try here first. I’ve contacted the school, daycare, speech therapist, and both sets of social workers. Everyone except for one of the social workers has been more than happy to provide us with the information that we need. A quick note about the social workers. They are in two different counties. I won’t give the names of the counties for security sake, but I’ll just say County A and County B. County A is where my sister was living when the children were taken away, and it is also where we are currently living. County B is the county that my sister moved to while the children were living with us. The social worker in County A had no problem giving us a note stating that the children lived with us from May – December 2011. The social worker in County B told us that they would not give us a letter at all. I’m just wondering if they have the right to deny giving us a statement that the children lived with us from May # to Dec #? Due to circumstances that will take way too long to get into here, I do have a strong reason to feel that the social worker is “bending the truth” in order to support my sister. She says that they will be “neutral” in the matter. But, what if she’s not being neutral? I have a feeling you’re going to tell me that I need to contact a lawyer, but I wanted to check anyways. Thanks in advance.

  684. Jan Roberg on Tue, 31st Jan 2012 12:40 am
  685. @Samantha–
    Everyone but one of the social workers is happy to help. Just forget about the other social worker. Even if she does write a note of support for your sister–you’ve got overwhelming evidence on your side. Don’t lose any sleep over it. You’re good.

  686. Jan Roberg on Tue, 31st Jan 2012 12:48 am
  687. @JesB–
    First, you should receive a letter from the IRS asking if you made a mistake and giving you the opportunity to amend your return. (If you’re in the wrong–amend and be done. If you’re in the right, you do not amend.)
    Then you’ll get a letter stating that you’ll need to prove that the children lived with you for more than 6 months of the year. Or–for more time than your ex had them. That’s where school records and stuff like that comes in–you round it up and make copies, and send your evidence to the IRS.
    Eventually, the IRS will make a determination as to who should have the higher claim and you will be billed for the refund that you shouldn’t have gotten–or your ex will.
    Generally, it’s all done through the mail. Hope that helps.

    One more thing–I’m a little worried about you because your ex is a bully. Don’t let him talk you into just giving him part of your refund. If you are in the wrong and shouldn’t claim your kids–then you pay the money back to the IRS–not to your ex. Remember–he’s a bully. If you pay him and he decides he wants to still punish you, then all he has to do is file his return after you’ve paid him and you’ll be out the money you gave him plus be out the money the IRS wants back (plus fines and penalties.)

    This is a case where even if you were wrong–you want to put the power of the federal government on your side. Dot your i’s, cross your t’s, and do everything by the book so that he can’t come back and hurt you later.

  688. Admin Roberg on Tue, 31st Jan 2012 1:07 am
  689. @Stephen,
    The short answer to your question–No, the IRS will not take her story and just assume it’s correct. She will have to provide the same level of documentation that you will.
    Also, the IRS never reveals who filed a child on their tax returns. Never–although it was probably obvious, but the IRS did not tell her that.
    Frankly I’m surprised that you’ve been issued a CP 75 so quickly. Standard operating procedure is for your ex to paper file and then the process begins.
    Right now, your job is to get your ducks in a row and get your paperwork in. The lease and the medical bills are going to be more effective than your photos and Facebook account. But it can’t hurt to add a little human side to your case.
    I’m sort of wondering–who claimed your daughter last year? I’m thinking that might have more to do with the IRS holding up your EIC than anything else. Something smells a little fishy. Please post again about what happens and how it plays out. (If you don’t mind.) I think your story will be helpful to other people dealing with this. Thanks.

  690. Admin Roberg on Tue, 31st Jan 2012 1:17 am
  691. Hey Julie,
    You’ve got a perfect situation. You take your daughter’s new social security number and file your 2011 tax return. Then you go back and amend your 2010, 2009, and 2008–you must get the 2008 in by April 15th.
    The form you need is a 1040X. What your changing is that you are “adding an exemption.” If you qualify for EIC you will say that in the comments as well. If you qualify for EIC, be sure to send the EIC page with your amended return. You’re not changing anything about the income–just the exemption and the credits that go with it.
    This is normal. You will write in the comment section that you were unable to claim your daughter on your return before because she did not have a valid social security number and now she has one.
    This is not a red flag issue, it’s actually fairly normal. Usually I’m doing this for immigrants–their children have ITIN’s but not social security numbers so they don’t get to claim all the tax credits, once their children qualify for a social security card, I go back and amend the old returns. Common practice. Not a red flag. Good luck.

  692. Admin Roberg on Tue, 31st Jan 2012 1:29 am
  693. @Star Grace,
    Yowza! I’m guessing you mean that the records are gone from anytime before November 2011, not after 2011 because you wouldn’t care about after.
    You said you had a lease right? Are the kids names on it? That would help. I’m guessing they’re too young for school, that’s always best, school records.
    You said that you received medical benefits–if the kids were little then you had to take them to get their shots. What about the shot record that you should keep for them? That’s a medical record.
    If you can’t send copies of your social service records, you could have your case worker write a letter on official letterhead stating that you are the children’s parent and that they lived with your from January 1, 2011 until August of 2011. Someone over at social services must have some knowledge of you.

  694. Admin Roberg on Tue, 31st Jan 2012 1:40 am
  695. Hey Cesar,
    You have a couple of options:
    1. It sounds to me like your ex only claimed EIC and left the exemption for you. That’s called splitting an exemption. She will sign a form 8332 and you will claim the exemption and the child tax credit while she claimes EIC and head of household. Here’s more info: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    2. You can fight for the whole thing–you’re hinging on 187 days versus 183 days–you’ll have a fight on your hands, but technically you would win. But–you’d better make sure you’re ammo is 100% because at 187 days you don’t have any wiggle room.

    3. I’m not allowed to give legal advice, so you’d have to ask your attorney about filing a contempt charge. The question I would ask is, how much will it cost you and how much would you get if you did? Make sure you know what the benefit would be before you spend money on a lawyer.

  696. Admin Roberg on Tue, 31st Jan 2012 1:52 am
  697. Hi Josh,
    Hopefully I’ve got some answers for you. First, about the court ordered exemption: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    That post will basically tell you that you can’t claim an exemption without a form 8332.

    Second–your ex isn’t feeling like signing one. Here’s the deal — it sounds to me like she can’t really take advantage of the child tax credit or dependency exemption, because her income is so low. She’s living with her parents–she might be letting her parents claim your child–that would make more sense (money wise) but you never know.

    You can try to negotiate (cheaper than going to court)– She signs the 8332 so you can claim the exemption and child tax credit so you can catch up on the child support.–it’s worth a try.

    I’m guessing it won’t work because she’s probably letting her parents claim the child, in which case–I’m not a lawyer, I’m not allowed to give legal advice–you’ll want to contact your lawyer to see if you need to file contempt charges. Here’s your problem–what does substantial compliance mean? I have no clue. The IRS won’t look at your decree so it’s worthless there.

    Now if your ex is claiming your child herself–it should be easy to get her to release the exemption. (Because I can’t see it doing her any good.) But I see you banging your head against a wall. I’m sorry. Good luck though.

  698. Samantha on Tue, 31st Jan 2012 1:54 am
  699. Thanks for the advice. I know that we’ll be fine, the situation is just frustrating. Like I said, there’s a lot more to that story, and I know for a fact that the social worker is not as “neutral” as she claims to be. But again, that’s another story for another day. Thanks again for the advice and all the pointers.

  700. Admin Roberg on Tue, 31st Jan 2012 2:17 am
  701. Hi Enivelys,
    Okay so your divorce was in 2008. If you decree gives him permission to claim your son and there are no conditions to it, well then he can and he doesn’t need any paperwork from you.
    If he doesn’t have anything allowing him to claim your son–you can still allow him to claim the exemption and the child tax credit. You would sign a form 8332 to let him do that. Since you don’t have any income, it makes sense for you to allow him to claim your son, especially if he’s helping you out financially.
    Your ex cannot claim head of household or EIC.

  702. Admin Roberg on Tue, 31st Jan 2012 2:29 am
  703. Hi Lela,
    Okay, first I love your email address. There’s got to be a good story there. Anyway–you’re right you should claim both of your children. You can release the exemption to him–sign an 8332 form. It sounds like you two have a good relationship so you may want to do that. See the split exemption post for more information: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    Now, about amending your last year’s return. I would do it. There’s only one thing–if you didn’t claim your other child, and your ex wasn’t allowed to. Who did claim the child? I can’t picture an audit without someone claiming the child. Weird.

    Anyway, I’d go ahead and file the amended return. Be prepared for the audit letter, don’t worry you’ll win–and watch around to see who gets upset–that’s going to be the guilty party.

  704. Crissie on Tue, 31st Jan 2012 2:30 am
  705. My husband has shared legal custody of his three kids, The divorce decree says that the parents have equal authority and no parents rights are superior to the other and that they are to alternate claiming the three kids with him claiming two one year while she claims one and they are to alternate claiming the kids until they are of age . His ex wife is an accountant and did his taxes for him under her business license but never complied with the court order and took all the credits for herself since the divorce but telling him he did get them as per the agreement. I have done our taxes the past couple of years and just realized what has been going on and having his tax returns from 08 up till current he has not gotten anything any of the previous years.. Can he file back previous years for all the credits he should have gotten per the divorce agreement? The kids literally live with us half the year and we provide clothing and food and even though the divorce decree says that she is resposible for medical insurance, we pay to cover all the kids because it would cost her too much to do so, so we actually pay more out of pocket caring for the kids than she does as it is. (not that I am complaining) and she has done nothing but be a weasel. She used her business license at her accounting business to do his taxes and he trusted her and I filed last year only filing for Child Tax Credit becasue my husband was deplyed and at the time I didn’t know what the divorce papers say and this year he is stil deployed so I didn’t think we could claim them this year so how do we fix our returns so we actually get the credits we are entitled to per the agreement?

  706. Admin Roberg on Tue, 31st Jan 2012 2:35 am
  707. Suzy,
    After you get your refund, then you can file an amended return. You can claim your second son for EIC, not for the exemption because your ex gets that. You may go back and file amended returns for as far back as 2008.
    In fairness, you ex may have claimed the exemption and the head of household and EIC–you could be sending his returns into a tizzy. If you have a decent relationship, you might want to talk to him first and give him fair warning. Or, at least let him know that you won’t be letting it happen any more.
    An amended return is a form 1040X. Don’t file it until you’ve got your refund. Many of the online programs will let you do the 1040X as well.

  708. Admin Roberg on Tue, 31st Jan 2012 2:48 am
  709. Hey Krissy,
    Remember you love your husband and that with good husbands sometimes comes baggage. Oh boy!

    Okay, here goes. First thing to check is the divorce decree: what’s the date, does he have to pay child support to claim the child etc. Here’s more info on that: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    Now, the second question is who has custody? Is it her? Then she gets the Head of Household and EIC, your husband only gets the exemption and the child tax credit. Make sure that he did his part right, and she should calm down. If he did his part wrong–have him fix it. If he did his part right and she’s upset over the exemption and child tax credit–she may be able to fight you (that’s why you read the court ordered exemption post)–but is it worth her while? See where you stand and figure what she’ll do from there. I suspect she’ll tell you in no uncertain terms–but see what she’s “entitled” to do. I wouldn’t do anything unless you know for certain you did something wrong–if you did, fix it.

  710. Admin Roberg on Tue, 31st Jan 2012 2:54 am
  711. @ Crystal,
    While it’s quite possible that your ex is lying–it’s also quite possible that she isn’t. Identity theft is rampant and unfortunately, people steal children’s social security numbers. I’ve done enough identity theft cases where I believe your ex.
    Okay, maybe not hook, line, and sinker, –I always suspect the ex first, but seriously, it’s quite possible someone else claimed your child. I’d at least give her the benefit of the doubt for now.

  712. Admin Roberg on Tue, 31st Jan 2012 2:55 am
  713. @Crystal: form 1040X is what you’ll file to amend (or appeal) your return.

  714. JesB on Tue, 31st Jan 2012 3:30 am
  715. Thank you so much for your help! The only thing I am confused about is since I have not gotten my refund yet can they stop the process or will they let it go through and then fix whatever later if it needs to be fixed? I am due to get my refund around the 7th. Thanks again you have no idea how much this is helping not only me but I am sure many other parents!!!

  716. kyle on Tue, 31st Jan 2012 3:49 am
  717. I was wondering how long it takes for an amend to be accepted because the person that did m girlfriends taxes put my son as ther dependent so when i go to file i get rejected and we filed an amend we are wondering how long it takes to be accepted

  718. becca on Tue, 31st Jan 2012 4:34 am
  719. i just filed my taxes and found out someone claimed my 2 kids already..my tax advisor filled out an amendment for me and i mailed it in..i have all documents proving they were with me..how long will this process be and how do i protect myself from this happening again and can i find out if this has happened before?

  720. Jan Roberg on Tue, 31st Jan 2012 4:05 pm
  721. @JesB–
    I don’t believe that you ex sending documents in right now can mess up your refund–that said, I received another post from Stephen who said his refund did get messed up. I’m thinking there was something else there–not his ex getting involved. But I haven’t been able to prove anything.

    Bottom line–don’t spend any money until it actually shows up in the bank.

  722. april on Tue, 31st Jan 2012 7:56 pm
  723. My ex and I have been divorced since 2008. My current husband n I have claimed my to kids on taxes every yr since. I’m the custodial parent. The kids live with me they only see there dad 60 days out of the yr.they are on my husbands insurance. You name it. Well I just found out my ex claimed my two kids after all this time. Even when he texted me asking me if he could and I said no. He did it any way. My tax place had me to the paper tax n send..do I have a leg to stand on.

  724. Admin Roberg on Tue, 31st Jan 2012 8:28 pm
  725. Hi Chrissie,
    You’ve just pointed out some really important information: NEVER LET YOUR EX WIFE PREPARE YOUR TAXES!

    You can smack your husband upside the head for that one. Does he realize how lucky he is that you checked? He owes you big time for Valentine’s Day.

    Okay–if you truly have equal custody and you are supposed to claim your children on the tax returns, go ahead and go back to 2008. You have nothing to lose and plenty to gain. Escpecially if he’s in the service because deployed armed services members can run the numbers two different ways–double win.

    You’ll want to pull out that divorce decree and check it agains the IRS rules: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    But I think it’s worth fighting for. Good luck.

  726. Admin Roberg on Tue, 31st Jan 2012 8:32 pm
  727. Hi Kyle,
    It takes about 16 weeks for an amended return to be accepted. Try filing again around March 15–see if it goes through. If it doesn’t, try again in April. You might need to file an extension. (Okay, the IRS says an amended return should take 8 to 12 weeks, but it always seems to be longer, that’s why I say 16.)

  728. Admin Roberg on Tue, 31st Jan 2012 8:37 pm
  729. Hi Becca,
    I think you mean that your preparer printed everything out to mail in. You don’t need to amend your return because you were right in the first place. (I’m just being technical, sorry.)

    The whold process will take a few months. The best way to prevent it is to guard your children’s social security numbers as if they were gold. Keep those cards in a safe deposit box.

    How to check to see if it’s happened before? Did you file a tax return last year? If you claimed your kids and it didn’t get rejected when you e-filed–then it didn’t happen. If you didn’t claim your kids last year–well that pretty much tells you who’s claiming them now.

  730. Admin Roberg on Tue, 31st Jan 2012 8:45 pm
  731. April,
    Of course you have a leg to stand on. Your tax preparer wouldn’t bother with the paper filing if you didn’t. (I’m assuming she knows her stuff. As a group, we don’t like paper filing at all so if we’re going to paper file, we pretty much like to be right.)

    But seriously, it sounds like you’re good. Do check the divorce decree post to see if your ex has got anything to support his claim. http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    Even if he does–you still get to claim EIC if you qualify–he does’t get that or head of household. (Married filing jointly is a better deduction so that’s what you are, you want to keep it.)

    I’m guessing that your tax person was already all over those issues so I wouldn’t lose any sleep over it. It will be annoying, and you’ll have to wait for your money, but your tax person did the right thing.

  732. april on Tue, 31st Jan 2012 9:25 pm
  733. Our divorce was finale in 2008.I don’t think anything was sign saying he could or couldn’t claim them on taxes. We never had this problem until this yr.and he didn’t start paying child support until the end of 2009 .so what happens if I believe there isn’t anything signed. Thank you

  734. Jan Roberg on Tue, 31st Jan 2012 10:04 pm
  735. @April–
    then he really can’t claim them without you signing a form called an 8332. And I’m guessing that’s something you never signed.

  736. april on Tue, 31st Jan 2012 10:13 pm
  737. I’ve never heard of the form..I want to thank you very much..you have put my mind at ease.I probably wouldn’t even care so much if he was more of a father.its who he did it. And knowing he doesn’t have any other kids and my family is a family of 7. And my husband does everything for mine n my ex kids. Like there his own..your advise is very helpful..thank you again so much.if that form was signed were would I find it..but I’m 100% sure it wasn’t. Just because it was never brought up.he did tell me there’s no paper work saying he can’t file.

  738. kyle on Tue, 31st Jan 2012 10:35 pm
  739. After they accept it will they send something in the mail letting me know that it has been fixed or will i just have to try to refile and would it work if i went ahead and filed by mail

  740. Jan Roberg on Tue, 31st Jan 2012 11:16 pm
  741. @Kyle,
    You can go ahead and file by mail. Your girlfriend may get a letter from the IRS asking her if she wants to amend her return–but she’s doing that already so that’s just fine.

  742. Shelby Marie on Wed, 1st Feb 2012 12:22 am
  743. Jan
    Me and my husband have been seperated for almist 3 years now an have lived in seperate states.. I am the custodial parent all though we still are legally married. I went to file taxes an they rejected it because he has claimed our daugter for the 3rd time. He has not seen her, don’t pay child support nothin. I have proof of daycare, doxtors, food stamps, TANF, etc… what should I do?

  744. ha.berecsky on Wed, 1st Feb 2012 1:18 am
  745. I e-filed last night (married & jointly) & claimed both of my sons. This morning I let my older sons father know (my ex – never married) & he told me he e-filed & claimed our son as well 2 weeks ago. What will happen now? We share him equally, 50/50. He gets him Mondays & Tuesdays, I get Wednesdays & Thursdays & we rotate the weekends. I get American holidays & he has him for Muslim holidays. There is no court order on who gets to claim him. However, I am the one who receives his SSI for his cancer, his health insurance is under my name & he goes to my school district under my address. I also make more money then him. Who will be granted the refund. I thought once a childs SS# was used it would reject my e-file, but it says approved on the H&R block website. My husband & I really need this refund for our bills, we were relying on it.

  746. Admin Roberg on Wed, 1st Feb 2012 2:27 am
  747. @ha.berecsky–
    I honestly don’t know. You’d think that you would automatically be rejected. Maybe your ex thought he filed but it didn’t go through? I’m stumped.
    Try the IRS “Where’s my Refund?” and see what they say. You have to wait 72 hours before you check it, but it might give you a better clue. The H&R Block notice would have been that the IRS accepted your return–that’s quite possible. Or–maybe your state return was accepted, but not the IRS. I’ve seen that happen.
    Bottom line–it looks like you didn’t get rejected. If that’s what happened, then I’d expect a refund. Please write back and let us know though. I’ve never seen a return go through when a child has already been claimed. Thanks.

  748. Jan Roberg on Wed, 1st Feb 2012 2:39 am
  749. @Shelby,
    Go ahead a paper file your tax return. The father doesn’t even live in the same state as your daughter, he’ll have a real hard time claiming that he’s the custodial parent.

  750. ha.berecsky on Wed, 1st Feb 2012 3:02 am
  751. Okay, thank you! No the state return says pending, but federal was approved. Everyone I’ve asked said that he would of e-filed then I would have been rejected right away.

  752. Tiffany m on Wed, 1st Feb 2012 3:44 am
  753. Ok. I am in the military. My wife and I seperated in Feb of 2011. I was in Iraq until July 2011. During that time she had our children. In June the kids were taken away by social services. The military sent me home early from Iraq to get my kids out of social service custady. When I got back from Iraq in July 2011 I recieved full legal and physical custady of our children. My wife has never worked in the 8 years we have been married. She got a job in Oct 2011 after I already had custady. She has never paid anything in child support. The divorce has not gone through yet. I am still waiting for a court date. I filed my taxes and it came back rejected because she claimed all three of my children. Do I have any chance of winning if I fight this?

  754. betty on Wed, 1st Feb 2012 4:05 am
  755. this is the 2nd year i had to do ammendment i went to file my taxes one of kids was used i faxed last year the court custody papers showing of have custody of my grandchildren but the father who has never done any thing or the mother for these children get the eic i had these kids legally since 2004 what can i do to stop him from claiming them

  756. betty on Wed, 1st Feb 2012 4:10 am
  757. ps help im at wits end how can someone claim a child they have custody the child dont live with the father grandma has full custody of children she got rjected by the irs

  758. rosie on Wed, 1st Feb 2012 7:06 am
  759. my boyfriend has been divoriced since 2000 and his divorce decree states and his ex split years to file the taxes for the 3 kids. He gets odd years, she gets even. She has now filed the credit on the kids all 12 years they have been divorced. She was even held in contemp of court for him to be able to claim them on her year, and she continues to sign off on the form 8332 to give him perission on the even years cause she knows she is wrong, BUT she continues to file before he does and his gets rejected. Isnt’ this fraud? Now the fun part, he does send in the paper return, and winds up getting paid – BUT SO DOES SHE. She never gets audited. We have reported her for fraud, but nothing happens. He only files for the child credit, not the EIC or HOH or anything like that. He is always up to date on child support, and if he is behind, they do take it out of his refund. Also, he pays for lots of things, school clothes and supplies, holidays, bdays, trips for vacation, and they live 5 hours away, so he doesn’t see them as often as he would like – but definitely not a deadbeat dad. Quite opposite – she doesnt work, lives on medicaid, HUD housing, foodstamps, and her husband doesn’t contribute and barely works. THey completely live off the child support. She continues to get away with filing the kids on the returns even though we have filed fraud papers. He has been audited 3 times – ironically on his official odd years, so he has been in the clear. she has not. Makes no sense! I understand she can file, HOH, EIC, etc., but NOT the child credit – isn’t this fraud?

  760. Ms.Spice on Wed, 1st Feb 2012 12:33 pm
  761. Hey. I’m curious and need help on my situation.
    I’m 23yrs old and I don’t really know how to go about this. I live with my mom along with my 3yr old daughter which has been living in the home with us since birth. My problem is since day 1 my mom has been helping me support my daughter meaning getting her in school, when I was working doing in home care my mom kept her, if my daughter needs ANYTHING my mom ALWAYS made sure she has it if I couldn’t not to mention she’s on my mom kaiser health inurance through her job. The other parent *my daughter dad* doesn’t support my daughter, he says he has this and that at his house but what will that do if she rarely goes over there. He doesn’t pay any child support let along give up any money for her in all the 3yrs she’s been in this world. For 2010 if I’m not mistaking he claimed her on his taxes without my known, he went and got a social security card and everything but I didn’t find out until my mom tried to file her taxes and her tax guy said my daughter was used, well it was a big shock to me since I NEVER gave anyone else permission to use her but my mom. I called the IRS and they said it was NOTHING TO BE DONE and again here we are 2012 and he claimed her after not even a week ago I told him NO because he doesn’t support her my mom does so my mom is using her. Well this guy went ahead and claimed her anyway and my mom tax guy called and said my daughter was used. Will he be able to get away with this if he doesn’t support her and I already told him personally NO he couldn’t claim her and not to mention the money that he gets for her on his taxes is spent on whatever he uses it on, in 2010 he brought over a pack of wipes, a silly cup, a pair of shoes and 2 packs of tshirts and said that was all he can get with the tax money he got back which I.know that was A LIE. How do me and my mom go about this situation in a nice way? *38wks pregnant so I’m highly irritated already and this rubbed me the wrong way* PLEASE COULD YOU HELP ME IN ANYWAY POSSIBLE

  762. ha.berecsky on Wed, 1st Feb 2012 12:47 pm
  763. I checked the “Wheres My Refund?” this morning & it says this: We have received your tax return and it is being processed. Unless there is a processing delay or you owe other taxes, you should receive your refund by February 14, 2012. Is this good news for me? I hope so!

  764. Jamei on Wed, 1st Feb 2012 3:19 pm
  765. Hello… Thank you for this artical.. My Ex-husband has just done this to me.. I am now mailing out the paperwork today.. My question is, He is serving time in jail for 3 months for Theft by Unlawful taking of $18,000. With that being said, will this delay the tax return when he fails to return the paperwork, due to being in jail? Thank you for you help and insite..
    Jamie

  766. Admin Roberg on Wed, 1st Feb 2012 3:50 pm
  767. @ha.baecsky–
    Good news for you! I guess you got in there first!

  768. Admin Roberg on Wed, 1st Feb 2012 4:18 pm
  769. @Tiffany–
    Tiffany? You were on active duty in Iraq and your wife claimed your three kids and the divorce hasn’t gone through yet.

    This won’t be an easy fight, (but I suspect you’ve seen harder) but it’s doable. First–let’s try for easy. The easiest option is to contact the ex and explain to her that she really needs to file a joint return with you–yada, yada, yada. I’m guessing that she’ll say no, but that’s the decent thing to do.

    So when she tells you no–that’s when you go on the offensive. Here’s what you’ve got in your favor:
    1. you are still married. While you’re on active duty, you count as having lived in the home with your children–so you technically were with them for the whole year–except for the time they spent in child services.
    2. I would paper file the returns and start the process–(assuming she says no to filing jointly). She really doesn’t have a leg to stand on. She did not have custody for more than 6 months–social services took the kids away in June!

    Now–why it would be the proper and kind thing for you to try to file together–if you don’t, you will file as head of household–because you were living apart for the last six months of the year and you had custody of the children. She will then have to file as married filing separately–worst tax status of all–plus she’ll lose all the benefits of having the kids on her tax return. (I know, you’re thinking serves her right, but remember she is the mother of your children.)

    So I think you have a good chance of winning. (Plus I never bet against a US veteran.)

  770. Admin Roberg on Wed, 1st Feb 2012 4:22 pm
  771. @Betty–
    If you get an answer to your question, please let me know. That’s the million dollar question isn’t it? How do we stop people who shouldn’t be claiming our kids from doing it in the first place?
    I talked to an IRS agent about that and what she told me is that because family circumstances change, they generally can’t prevent a parent from making a claim. So Betty, you’re going to be filing all that same paperwork all over again. I’m sorry.
    But–on the plus side, you know what you’re doing and you know you’re going to win. I wish I had a better answer for you though.

  772. Admin Roberg on Wed, 1st Feb 2012 4:28 pm
  773. @Rosie,
    I call it fraud, but like I told Betty, the IRS is hesitant to call fraud on the parent. Eventually too, the IRS will catch up and go after the ex for the money–but I’ve seen enought posts where it looks like the ex is getting away with it. Eventually they will get caught. In the mean time–you know the drill and you know when you’re right.

  774. Admin Roberg on Wed, 1st Feb 2012 6:01 pm
  775. Dear Ms. Spice,
    First, it’s important for you to know that you are not cranky because you are pregnant. You are cranky because the jerk done did you wrong! I just want to make sure you know the difference. I remember being pregnant (oh so long ago) and people would say, “Oh, you’re just mad because you’re pregant.” That just made me madder. But in your case, you have every right to be furious. Just sayin’.

    Anyway–you and your child live with your mom. Your mom provides most of the support for your child. If you do not claim your child on your tax return, then Grandma gets to. That’s legal and right.

    Nothing to be done? Hah! Sorry, now I’m mad on your behalf. Your mom can go ahead and file–she has every right to. First–since your ex already claimed your child, your mom should mail in her tax return to claim your child and get the ball rolling. Next, she should go back and amend her old returns claiming your child. In the explanation box she should write: “claiming exemption and related benefits for grandchild, schedules attached.” That’s a proper IRS explanation–unlike the one that’s going through my head and is unfit to print in a G rated blog post.

    Good luck with your taxes and good luck with the new baby too!

  776. Admin Roberg on Wed, 1st Feb 2012 6:11 pm
  777. @Jamei–
    Okay, I don’t know. I mean–it seems to me that if your ex is in jail–that’s a pretty convincing argument that he shouldn’t be claiming your kids. But, I can see the point that maybe he filed before he went to jail? Or, how did he file while he was in jail?
    For what it’s worth–the IRS does not smile upon inmates illegally claiming EIC from their prison cells. He’s a post I did about a year ago: http://robergtaxsolutions.com/2011/02/crime-and-taxes/ Since then, the IRS has been cracking down and working on ways to reduce EIC fraud from prison.

    So, I guess that since your ex is in jail, the IRS will probably show you a little favoritism if anything. Will the process be delayed for you? I’m thinking not–it will be just as slow as it is for everybody else, but probably not any slower.

  778. Ms.Spice on Wed, 1st Feb 2012 8:02 pm
  779. Thank you very much. Another thing is would he be able to claim her in the future or am I stopping this for good? Which is what I want to do *also I want to stop his mom because she’s just like him, and when my daughter was 2wks old born in Sept.2008 his mom said I can claim her on my taxes like its all about the money but when I was in labor she was saying momma baby daddy maybe but getting money out of it. Also she had him file for legal custody and wants me to have physical custody which was the most ignorant thing a mom can do because you can’t get legal custody without physical custody so he just got visitations, long story short the custody battle started due to him getting a child support letter in the mail to PAY.

  780. Admin Roberg on Wed, 1st Feb 2012 8:09 pm
  781. @Ms. Spice–
    I’m sorry but you won’t be stopping this for good. Sometimes it takes years to get it through some people’s heads that they can’t claim children that they don’t take care of. But–from now on you’ll know what to do and how to handle it.

  782. Ms.Spice on Wed, 1st Feb 2012 8:28 pm
  783. Thank you very much.

  784. Lynda Brown on Wed, 1st Feb 2012 8:35 pm
  785. I was divorced in 1994. We have joint custody, my ex was to claim our 2 daughters and I was to claim our youngest son. Four years ago he went to college at Sacred Heart which is a sister school of SU where my ex works. In order for my son to go to school for free my ex had to show he claimed him on his tax return. So for 4 years he claimed him. Now that he is graduating I want to claim him again this year and he tells me he is going to. Does the divorce decree which was issued in 1994 stand up? I never did sign anything allowing him to file the last 4 years can I also go back and claim him for the years I did not?

  786. Marisol on Wed, 1st Feb 2012 8:59 pm
  787. Well my situation is I have two kids with my ex (3yr old and 9month old), and he wanted to claim the kids this yr, but since they live with me through out the year I claimed them. He does pay me child support. But I believe since they live with me i should claim them, since i support them as well. So i did claim them and notified him. He is upset and is threating me and saying he will also claim them so we can both get in trouble with the IRS. Can I get in trouble if the kids live with me and I claimed them both, even though he pays child support. Was I in the wrong?

  788. Jan Roberg on Wed, 1st Feb 2012 9:01 pm
  789. @Lynda Brown–
    Let me say this back to you to make sure that I understand you completely. Your ex claimed your son on his tax returns so that your son could get free college tuition for the last four years?
    And now, not only do you want to claim your son this year–but you want to go back and change your taxes for the past four years and claim him again?
    Am I hearing you right?
    Sure–you can go back and claim your son for the past four years–as long as you also pay back the college the four years of tuition that you didn’t have to pay for the past four years. I believe Sacred Heart’s tuition is around $32,000 a year. What are you complaining about?
    Did you ever tell your ex “Thank you?”

  790. Jan Roberg on Wed, 1st Feb 2012 9:18 pm
  791. Hey Marisol,
    No you’re not wrong. Now, you’re going to want to check to see if he has any legal right to claim an exemption. Check here for that: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    I’m guessing he doesn’t, but do check the rules. Then, if he does have a right to claim the exemption–okay you let him–but you keep head of household and EIC. If he has no rights–well then too bad for him.

    Remember–you don’t need to be afraid of an IRS audit when you’re in the right! The children live with you. I’m betting that you can prove it. Call his bluff. Be strong. You’re right. And the best part is–you’ve already filed first! (Sorry, that was immature. But the IRS does not like it when people paper file a false claim–and that’s what he’d be doing.)

  792. Tiffany m on Wed, 1st Feb 2012 9:58 pm
  793. Thanks so much. I had my sister type for me she is much better at this stuff then I am! I contacted the IRS. Its going to be a lot of work. I have to provide all the court papers when I got custady, from when the kids were taken from her by social services, I have to prove what school and when I registered them for school, I have to provide a copy of finance stuff showing where I was paying her support while I was in Iraq and I have to go on line to print some form that shows that I am disputing this. I dont have the info in front of me but a D something form. The rep told me it could take anywhere between 2-10 months to get this all cleared up! A long time but it will be well worth it!! Thank You so much for your advise!! I really appreciate it!

  794. lisa on Wed, 1st Feb 2012 10:14 pm
  795. My daughters father claimed our daughter on his 2011 taxes, without my permission. I have sole physical joint legal custody of our daughter and she lives with me full time. I did not sign over the paperwork needed for him to claim our daughter on his taxes. Is there anything I can do legally to change this and prevent this from happening in the future. I feel that he has illegally claimed a dependent on his taxes, causing tax fraud, Please respond back at the above e-mail address. Thank you!

  796. Admin Roberg on Wed, 1st Feb 2012 10:31 pm
  797. @Tiffany–I kind of figured you had someone typing for you.
    I’m guessing you mean the form 886 H DEP. It’s the list of stuff you need to pull together to claim your dependents. Here’s a copy of one: http://www.eitc.irs.gov/public/site_files/F886-H-DEP-2011.pdf

    You dispute your ex’s claim by paper filing your tax return. But the 886-H-DEP lists all the documents that you’ll need to prove you are the rightful person to claim the kids. Good luck.

  798. Admin Roberg on Wed, 1st Feb 2012 10:34 pm
  799. @ Lisa,
    What you want to do is paper file your tax return. Then you’ll go through the process of proving your claim. It will take time. I have found nothing yet that can prevent it from happening again. Sorry.

  800. Julie on Wed, 1st Feb 2012 10:58 pm
  801. I got divorced in 2010. All 4 kids live with me. The divorce agreement states that he is to clean our 19 yr old son this year…but I received no financial help for him and our son doesn’t work – looking for a job. He lives with me 100%. I have asked my ex but he has said no. Should I risk it?

  802. Jan Roberg on Wed, 1st Feb 2012 11:27 pm
  803. @Julie,
    You’re asking an anal retentive, straight arrow, accounting type if you should “risk it”? What do you really expect me to say? Of course I’m going to say no. It’s the way I am.
    But let me give you a good “professional” reason for saying no.
    1. You have this divorce “agreement”. It is a legal document. I’m not allowed to give legal advice, but let’s be real, it’s still a legal document and you want to throw it in the toilet? What’s in the divorce decree that you’d like your ex to abide by? Remember, these things work two ways.
    2. You have 4 children. You can claim 3 of them for EIC. The fourth gets you nothing there. You already qualify for Head of Household. So you’re only losing out on the exemption and the child tax credit anyway. But wait–your oldest is 19–there’s no child tax credit for him so you’re only losing the exemption.
    3. So how much money are you losing out on? Are you in the 25% tax bracket? 15%? Or have you already zeroed out your taxable income with your other three children? Now, if you’ve already zeroed out your income and you stil want to claim your oldest–that’s just being mean.

    You need to ask yourself, “what am I getting out of this?” And, “Is it worth the fight that I’m going to have?” Unless you make a lot of money–I don’t see a financial gain for you. And if you do make a lot of money–I don’t see any sympathy going in your direction. It’s kind of a lose/lose proposition. So sign the 8332 form and let your ex claim your 19 year old.

  804. Julie on Thu, 2nd Feb 2012 12:07 am
  805. Ok thanks for your info!

  806. kayla on Thu, 2nd Feb 2012 2:36 am
  807. my fiance and i have been taking care of his daughter all but a month and a half of this year and her mother decided to claim her with her cash assistance money she got last year.im really worried that the money wont be spent on the child wisely being the last time she filed taxes non of it went to benefitting the child and two months after getting it she was homeless with no food. what can i do

  808. Amy on Thu, 2nd Feb 2012 5:08 am
  809. We have adopted children. A biological mother has been claiming 2 of the 3 children that she lost rights to throught foster care in 2006. She has claimed them every year. YES I SAID EVERY YEAR! I have sent in a paper claim with a cover letter and all of our documentation – every year. It will not stop. I have contacted her parole officer, local law inforcement, attorney general, IRS, social security, state representative, senator and congressman. Law inforcement told me it is not a crime against me it is against the governement. They can’t help. Parole officer said unless it is a crime – they can’t help. Attorney general said without charges being filled – they can’t help. Elected officials – can’t help. Local IRS said that they basically have bigger fish to fry. Since the amount that she was defrauding them for was not enough for them to even open an investigation – they can’t help. And finally social security – they will not provide our children with new SS numbers because we cannot prove identity theft. There is no crime here- so they can’t help. I have begged and pleaded with everyone I can think of – nothing works. I have begged the IRS for years now to flag our file or her’s so that they will not allow this to continue. Well we just attempted to file our return for this year and guess what – she did it again. We are at our wits end!!!!! I know we will eventually receive our refund but I can’t do this every year! To top it off – my husband is currently unable to work due to an injury. We did so much work on this last year that we thought we had fixed the situation and we were counting on this money to make ends meet until he can return to work. At the top of this blog you stated “The big downside to this is that it will take months to settle. Months. On the upside, once your ex has lost an audit case for claiming your child, it will be very difficult to ever try it again. You’re not just solving a problem for one year, you’re preventing future problems as well.” PLEASE help us prevent future problems!!!

  810. kay on Thu, 2nd Feb 2012 6:29 am
  811. My daughters father claimed our daughter on his taxes so that made mines be rejected. We have joint custody of her but i am the custodial parent and she lives with me. He gets her every other weekend. He pays child support, he owes back child support what should I do about this?

  812. Karla on Thu, 2nd Feb 2012 4:19 pm
  813. I have read through all these blogs and realize that my ex and I have been filing our taxes wrong.
    My ex and I split up in 2000 and had a agreement to claim our son every other year. We did that for a couple of years because my ex was still around and helping me out. That dwindled as the years went by. My ex and I then agreed that I claim him since my son was living with me and was being supported by me and my husband.
    One year I get a call from the IRS asking me some questions about my son. Things like where did he live, how long did he live here, etc. When I talked to my ex, he said that he was told that we both could claim our son on our tax returns. I never researched and just took his word for it. So we have been doing it that way since then.
    Now the IRS has sent me the letters asking me to prove me son has lived with me. I have followed the instructions precisely. I sent in a letter from my son’s school and one from our church minister backing up the fact that my son has lived with me. They were rejected twice. The first time they were rejected, I hadn’t included all the information they were looking for. I corrected the paperwork and resubmitted them.
    I just received a letter stated that are going to stick to their original findings. They are not allowing me to claim my son as a dependent and are asking me to pay the adjustment.
    On the letter its says if I disagree, I should write a letter and send it documents to support my claim.
    I have already done that and they didn’t accept it. Should I do it again?

  814. kelly on Thu, 2nd Feb 2012 4:38 pm
  815. I just found out that my taxes were rejected due to someone claiming my 9yr old child. I am not sure what to do. There isnt anyone else that can claim my child that I am aware of seeing as how I am the only parent. My child’s father passed away 5 years ago and i have no contact with any family members. My child is a special needs child and I am really freaked out! Where do I start with the IRS and should there be more steps involved?

  816. john on Thu, 2nd Feb 2012 6:35 pm
  817. ok so i just went to file my EIC for 2011 and ofcoarse it got rejected. My ex wife and i have been going threw a custody battle with no resolution yet we got divorced in may of 2011 we have both since then been remarried and here lies the problem our daughter of whom i had only on weekends up until may 21st at which point i had her everyday until sept 27th at which point i had her fri-monday for a grand total of 211 days out of the year. i did not have my i did not have my daughters ssn so i went threw the lawyers to try to get it for fileing my taxes ofcoarse when my ex wife caught wind of this she ran out and filed them first. now i am out 4k. correct me if i am wrong but shouldnt i have the rite to claim her i am her biological father and had my daughter more out of the year. as well as her medical insurrence and everything else falls under me. am i wrong to try to persue this issue being corrected or not?

  818. Denise on Thu, 2nd Feb 2012 6:39 pm
  819. i have been divorced for 12 years. My ex always (by decree) claimed our oldest daughter who is now 18 and in college and I always claimed our youngest daughter. Once the 18 year old turned 18, he stopped financial support and has not even given her gas money. She turned 18 in May of 2011. Its tax time. I just filed my taxes and claimed her as a dependent. She is 18, lives in my house full time, is a full time student and works part time (made 2K in 2011). I provide medical insurance, auto insurance, pay all copays, provide, all food, clothing, shelter, etc. She is a GREAT kid. Since she is 18, cant claim herself and is living in my home full time and we provide for 100% of her expenses I feel I am correct in claiming her as my dependent. He will go to file soon and find out that i have claimed her. Am i in any hot water here?

  820. Sandra on Thu, 2nd Feb 2012 6:49 pm
  821. OK, I have an odd situation. I was given a child this summer (he is not otherwise related to me). Bio mom can’t handle him any longer, bio dad never even showed up for court. Bio mom was custodial parent but on SSI so never claimed him, so bio dad has always claimed him. I received physical custody on July 30, 2011 and legal custody on November 7, 2011. I have the right to claim him next year, correct? I thought maybe that I could claim him this year, but see that I would have to have him for at least half a year. Bio dad is now in a snit because I told him I plan on claiming him next year.

    Thanks for any advice you can give me on this situation.
    Sandra

  822. Amira on Fri, 3rd Feb 2012 1:15 am
  823. Thanks for the great advice on here! I’ve got everything ready so that when I get the letter and the questionnaire I’ll be able to proceed immediately. I was telling a friend of mine about it, and she told me something kinda scary. She said she had faced a similar situation herself, but the IRS agent point blank told her that it wouldn’t be worth going after the person who had filed incorrectly. The end result was that she got part of her refund as if she didn’t file the children on her taxes. I don’t want to offend her, but could it be that maybe she had some of her “facts” wrong? I sure hope so. I’d hate to go through all this, only to be told it’s “not worth it”.

  824. Admin Roberg on Fri, 3rd Feb 2012 1:17 am
  825. Hey Kayla,
    Your fiance has had his daughter for over 6 months so he has the right to claim his daughter on his tax return. He can paper file, claiming his daughter and go through the whole audit process. But–it sounds like his case is good so I’d do it. Good luck.

  826. Admin Roberg on Fri, 3rd Feb 2012 1:26 am
  827. @Amy,
    I’m so sorry. I don’t have a magic cure for you. I spoke with the IRS and basically was told that they can’t stop a parent from claiming a child–even though the parent has lost several EIC claims. Their reasoning is that you never know when parents change custody. I thought that was lame but that’s what they told me.
    There is a fraud form that I had helped people could use–I spoke with the IRS about that yesterday–I was told the it was absolutely not to be used for the “ex claiming kids” cases.
    And I had one person write here about how his ex used H&R Block and that Block got his return stopped. Well, I called Block about that (I used to work there, we never had anything like that back then.) They don’t have a way to block filiers–their best guess was that he just conveniently got tagged for some other reason.

    So–I’m sorry, I don’t have a magic answer for you. You’d think that once the mom lost a claim once or maybe twice–she’d learn–but evidently that’s not the case.
    I’m sorry.

  828. Admin Roberg on Fri, 3rd Feb 2012 1:29 am
  829. @Kay-
    You need to read the directions at the top of the page.

  830. Admin Roberg on Fri, 3rd Feb 2012 1:38 am
  831. @Karla–
    A couple of things.
    1. The IRS says you can’t claim your son as a dependent–so I’m thinking there may be a divorce decree that lets your ex claim the dependency exemption. See this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    2. If that’s the case, and your ex can claim the dependency exemption, then you may still be able to split the exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    Now–if your ex doesn’t have a divorce decree in his pocket that allows him to claim–or a signed 8332 form from you, then you’ve got to resubmit those forms. Here’s the thing–you’ve been rejected twice–so I’m thinking there’s something wrong. It’s time to call on the big guns and get some professional help. Here’s a link to find an EA in your area: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx

    Good luck.

  832. Admin Roberg on Fri, 3rd Feb 2012 1:43 am
  833. Hey Kelly,
    You’re a victim of identity theft. Don’t be surprised if someone you know if the culprit, but it can happen in all sorts of places. Was your purse stolen in the past year? Have you had to use your child’s social security number for an application? It could happen in lots of places.
    Bottom line, you handle this the same way that the divorced people do. You file a paper return and when the audit happens, you complete all the paperwork proving that you are the parent. You will win–it’s just a pain in the behind.

  834. Admin Roberg on Fri, 3rd Feb 2012 1:55 am
  835. Dear John,
    (Gee I’ve always wanted to say that, sorry.) Here’s the situation–it looks to me like you’ve got the right to claim your daughter. You win on the days issue. But I’m going to warn you–you’re going to have a tougher fight than some of the other folks here. You’re going to be counting days and that’s a toughe sell. So–get your ducks in a row–do you have a calendar showing what days you had your daughter? The medical insurance helps, also where did your daughter go to school? Is it in your district?
    I think you need to go ahead an file, but start preparing now for the audit. Here’s the list the IRS will be sending you–may as well get started: http://www.eitc.irs.gov/public/site_files/f886_h-EIC_2011.pdf
    And good luck.

  836. Admin Roberg on Fri, 3rd Feb 2012 2:00 am
  837. @Denise,
    Well you won’t get in trouble with me, but that doesn’t count now does it. What will the IRS say? Your issue is going to be–does your ex have any right to claim her? Whats in the divorce decree? http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    If he doesn’t have any grounds to stand on–then go for it. I’m guessing he thinks he can’t claim her and that’s why he’s stopped the support. But you never know what some people are thinking. Check you paperwork and make sure you’re in the right. Or–if you do decide to file for her anyway, stash the money in a bank account. If he does try to file and you are going to lose, you’ll have to money to pay it back.

  838. Admin Roberg on Fri, 3rd Feb 2012 2:08 am
  839. Hi Sandra,
    So the court gave you custody of the child. Are you officially the “foster” parent? If yes, you will be able to claim the child for everything–dependency, EIC, child tax credit–the works.
    If you are not considered to be a foster parent, you will still be able to claim a relationship because the child will be with you for a full 12 months. You’ll be able to claim the dependency exemption and that’s it.
    I hope you qualify for the foster parent designation. You know you’re doing a really wonderful thing, right?

  840. Admin Roberg on Fri, 3rd Feb 2012 2:14 am
  841. Hi Amira,
    Basically, if you’re in the right–you should be okay. But to be honest, there are people who “think they’re right” but not within the IRS rules.

    Here’s a link to the EITC assistant on the IRS website: http://apps.irs.gov/app/eitc2011/SetLanguage.do?lang=en

    Basically, if you answer all these questions truthfully–it will tell you if you can claim a child or not.

  842. Hallie on Fri, 3rd Feb 2012 6:34 am
  843. Hi my husband and I have been seperated since 2010. I have had my two girls ever since. He lives in louisianna and I live in Oklahoma. There are no divorce papers or custody agreements, but they have lived with me the whole time and I have proof. I just found out that he claimed them on his taxes. I can not file because I didn’t work (I’m a stay at home mom and student), but legally he can’t claim them cause they have never lived with him and he doesn’t do anything to help with them right? I want to file fraud on his part because I don’t think that he deserves to get money for them when he does nothing for them. So since I did not file I how do I get the ball rolling and report him? I filled out and mailed in a Form 3949 A that i got off the IRS website http://www.irs.gov/pub/irs-pdf/f3949a.pdf Is this all I need to do? What advice can you give me?

  844. Liz on Fri, 3rd Feb 2012 10:44 am
  845. Hi I have a question.I have sole custody of my 7 year old son he lives with me and guys dad barely. Even sees him he is supposed to get him every other weekend and came to.see little man 4 times last.year. My divorce was.finalized inDec of 08 and I got bullied by our attorneys into letting him claim little man on the odd numbered years as long ass.he.pays his child support which he does because I was smart enough to.get it taken out of his check.

    Now he called me today saying I had to sign some paper in order for him to claim little man but I was told.that since.I have sole custody he.shouldn’t be claiming him at.all what he pays in child support is a joke I have to.provide his insurance everything! I really got screwed I kinda feel he shouldn’t be claiming him at all I am assuming here but I think he.us claiming all exemptions on the years he claims him I have left it alpine because I don’t want to get in trouble but at first today he was frantic.about signing thus paper than tells me I don’t have.to so I want to know what do have to do. I really don’t think its fair for him to pay so little in childsupport and him get so much back I don’t want to be or seem spiteful but as of now I am unemployed for almost two years know I can’t claim eic because I am not working but the fair thing would be for him not to claim that either by don’t so he doubleng almost triple his child support back my fiancée is providing for us and I do get unemployment and I have to file what is my place? What do I do.

  846. Denise on Fri, 3rd Feb 2012 12:22 pm
  847. Thanks for your info, but I am wondering why the advice to check the divorce decree. She is 18. He stopped the support because she turned 18 and his court ordered obligation was until she turned 18. So was the COURT ORDERED division of claiming her as a dependent. Does this change your advice any? Our tax person (one we have used for years) said she felt I was legally within my rights to claim her since she was 18, lived with us full time, no longer subject to a court order or parenting plan, etc. Now Im worried.

  848. Kim on Fri, 3rd Feb 2012 12:57 pm
  849. My issue is I had my daughter for 7 months last year and my ex had her for 5 so i”m automatically in the right for claiming her right?
    And we were both verbally told by a child support referee that I was rewarded the claiming of her and he still claimed her. Could he get in trouble for intentionally claiming her when he knew he wasn’t supposed to?
    Thank you for this it has been a HUGE help! I was so lost before I read this.

  850. Jan Roberg on Fri, 3rd Feb 2012 3:25 pm
  851. @Denise–
    No, I wouldn’t be worried–it’s just that what does the divorce decree say about him claiming your daughter? Does he get to do it until she’s 18? I think most of them say that, but from some of the calls and mail I get, some decrees talk about college etc. and the ability to claim includes the college years.
    So–that’s why I say check the decree. Not that I think you’re in the wrong–(because I’m guessing you’re right) but you want to dot your i’s and cross your t’s first. Just to be safe.

  852. mona on Fri, 3rd Feb 2012 6:51 pm
  853. For 8 years my son father has been filing her on his taxes and he has not giving her anything. Every time I file my taxes it gets rejected because he filed her. I have been doing an amending return for 7 years. Even one irs representative told me to mail my taxes in so I did in 2009. Still nothing has happen. For 8 years I have been calling the Irs and writing them to stop him from filing my child and they have not done anything. Even this year my taxes got rejected so now I will have to do another amending return just to add her. This is so frustrating because I am the only one who has the right to file her. She has never lived with him. He never knew the school she attends nor where we lives, but yet the irs is not doing anything. I even went to the irs criminal investigation department and still nothing has happen. The father told me that he can file her because he pay childsupport which is only $200 a month. Please do you have any suggestions for me because this needs to stop. Thank you

  854. Melinda on Fri, 3rd Feb 2012 7:10 pm
  855. My son’s soon to be ex filed separately for 2011 after they had already agreed to file joint as they aren’t divorced yet. She claimed their son even tho my son made $37,000 & she made $8,000-$10,000. My son was in the Navy thru May 2011 & therefore he provided housing & medical thru his Navy employment for 5 months. Their son lived with her parents for 1 month before they moved back to Michigan. They all lived with her parents for prox. 1 month after moving back to Michigan until they got an apt in July where they all lived until she moved out Nov. 6th. Bottom line is my son provided way over 1/2 of his son’s support for 2011 & his son lived in their marital homes for 8 months. Currently they have joint legal & physical custody with no court order as to who gets to claim their child. Do you feel he has a good chance in winning the right to claim his child? I also believe she filed head of household which is incorrect as she lived with my son 4 of the last 6 months of the year.

  856. Gloria S. on Fri, 3rd Feb 2012 8:57 pm
  857. Hi…My living partner and I have been going through an issue with the IRS…we live together for the last 14 years we have now 4 kids but with the first two who are older most years I filed as HOH and claimed them on my tax return with no problems!!

    But back in 2006 we decided that my significant other claim them on his tax return (his is the father and we have always lived together with the kids) well they denied him saying that the kids weren’t his and that he had no claim on them???!!

    So we got everything together…birth certificates, school records, leases, everything and yet they still denied it….so I ammended my tax return I claimed them and viola! I got the refund and EIC and everything..

    2010 Tax Return Filing We tried the same thing including our newest baby..well the EIC was only approved on the Newest baby not on the older ones??!! We don’t get it why are they denying him as the father and the fact that all the paperwork shows they have lived with him?

    I did not file for 2010 and I’m thinking I’ll just do so and 2011 with our two older kids (12 and 9). and he can file the two youngest (8 month old and 22 month old). Can we both file as HOH in our individual tax returns?

    Any suggestions to why the IRS keeps denying my significant other for our other children? and what can we do? we have filed that form they require asking how long they have lived with him…but no go

    Thanks!!!

  858. Melinda on Fri, 3rd Feb 2012 9:12 pm
  859. In addition… the housing alone while he was in the Navy was computed to be $2,100 per month in addition to his $37,000 income. There were 2 adults & 2 children living in the Navy housing. When they moved into the apt, she paid $450 per month Jul – Sep (promo rate). He paid $900 for Oct. & has been billed for 2 more months + late charges totaling $1,925.

  860. Chris on Fri, 3rd Feb 2012 11:04 pm
  861. Hello,

    I have joint custody with my ex (never married). I have primary residence and she gets our daughter once a week and every other weekend. She doesn’t part child support or help out with anything. However the rock in the situation us that she has our daughters ss card, I know her ssn by heart so its not an issue. But im very worried that she us going to try and claim her on her taxes. Its this possible if her to do?

  862. Amanda on Fri, 3rd Feb 2012 11:44 pm
  863. I am a single 24 year old woman with 4 kids who has been going through alot of problems with other people filing my children for earned income credit. For the past 2 years my ex- boyfriend has illegally filed the 2 kids that I have by him, but I am the custodial parent, and my children always live with me. My ex- boyfriend is the father of these 2 children, but we have never been married, and no DNA has ever been established in order for him to gain the right to ever file them. My ex doesn’t pay child support because there was never DNA ordered, but he never supported our boys, and he blew my kids money 2 years in a row on drugs and alcohol instead of his children. I have 2 other boys from another man, and ever since 2005-2006, he and his mom have been telling other people to file my kids and split the money with them. I have had DNA established for these 2 boys that was court ordered. He is supposed to be paying me $417 since 2007 and he has never paid. Childsupport enforcement said they can’t make him pay because he is mentally disabled. He is not disabled though. He is really smart, and just uses his disability check to buy crack and sell it for profit. What can you do to help me???

  864. Amira on Sat, 4th Feb 2012 12:42 am
  865. Thanks for the link. I checked it out, and it told me pretty much what I already knew. I’m just wondering if the IRS will dismiss my claim (or at least the part with the children) if it’s “not worth it” to them. In other words, yes I qualified and the other person didn’t. But the other person filed first. Even though I have the proof, are they going to dismiss it saying that it’s a waste of their time?

  866. Admin Roberg on Sat, 4th Feb 2012 2:23 am
  867. Amira–
    They had better not. If the IRS tells you its a waste of time then you call me–and the will regret it.
    (Sorry that’s a little cranky, it’s been a long day. But every case deserves to be treated with respect and consideration. And when you don’t get it–well, that’s my specialty.)

  868. Admin Roberg on Sat, 4th Feb 2012 2:32 am
  869. @Hallie–
    I really wish I knew just what will happen with the 3949 form. The IRS will never tell you because of privacy issues, but I’d really like to know if it helps.
    Other options–I know this sounds awfully personal (sometimes it’s easier in an office behind closed doors) but if you have no income–how are you surviving? You need to eat, have a roof over your head, etc. I’m guessing you’re not homeless. So–
    Are you living with someone? A parent or boyfriend? Someone else who can legally claim your kids?
    If you live with a parent–a parent could claim your kids with all of the full rights and privileges of EIC, child tax credit etc.
    If you live with a boyfriend (or just a friend) your friend who is supporting you and your kids could claim you and your children as dependents. Now, because there is no “relationship” other than living together for 12 months–there’s no child tax credit or EIC–but there’s still the exemption and it does put a kink in your ex claiming the kids.
    Last time I checked, Oklahoma was a Texas sized drive away from Louisianna, so your ex would really have a hard time proving he had custody from so far away. It’s not a perfect solution, but it gives you an option.

  870. Admin Roberg on Sat, 4th Feb 2012 2:45 am
  871. Oh Liz–
    you really want to sign the 8332 form. You see, if he hands that 8332 form to a professional tax preparer–then all he can claim is the exemption and the child tax credit–he can’t claim EIC! If he doesn’t have the 8332, he could try to cheat and just lie and claim everything.
    Now granted–you don’t want to give him anything–but you do have your divorce decree and you should go along with it. Use it to your advantage.
    Now, you’re unemployed so you can’t claim EIC–but you still get the head of household designation which will reduce your taxable income (they do tax that unemployment.)
    Once you and your fiance’ are married, you’ll be able to file jointly and claim your little man for all of the tax benefits (every even numbered year) and EIC if you qualify in odd numbered years.
    It’s annoying to give up tax benefits to a guy who never spends time with your kid, but at least he’s up to date on his child support. (Okay, so that’s only because you were smart, but he is current with the child support.)

  872. Admin Roberg on Sat, 4th Feb 2012 2:52 am
  873. Hi Kim,
    To be honest, I doubt that your ex will get into any real trouble. I mean, you’re going to file the paper return and start the audit process–and you will win–but other than paying the money back and adding in a fine–he won’t really suffer.
    On the other hand, I’m thinking very bad thoughts about him right now so he’s suffering from a really bad stomach ache–right now–and he has no idea why he feels so awful. (I really shouldn’t joke about stuff like that, I had a boss I really disliked–really bad person–and I thought bad thoughts and he had a heart attack. I know, it really wasn’t my fault, but the timing was pretty scary.)
    You know, I’m kind of enjoying thinking these bad thoughts. I think I’m going to send bad vibes to your ex tomorrow too. (And if he ever complains to you about how awful he feels–well you just laugh!)

  874. Hallie on Sat, 4th Feb 2012 2:55 am
  875. My mom tried to file and claim them since we did live with here for the majority of the year, but she was rejected cause he had claimed them. So she filed anyways cause she really needed the money. She also claimed me as a student. So another question I have is can I file a zero return and claim the girls without expecting a return, just to file? Even though my mom claimed me as a student as well? She didn’t get EIC for me I was just a dependant. That way we both filed and claimed them and they can audit the both of us?

  876. Admin Roberg on Sat, 4th Feb 2012 3:14 am
  877. Hi Mona,
    You’re a perfect example of why we need to change the rules. You shouldn’t have to go though this every year.
    By the way, paying child support doesn’t mean he gets to claim your child. (Okay, it did mean something back in 1983, but not now.) I wish I had a magic answer, but I’m sorry, I don’t.

  878. Hallie on Sat, 4th Feb 2012 3:28 am
  879. Or could my mom file a tax amendment and claim the girls? I have all the proof I need to prove that we lived with her for the majority of the year. I know the IRS likes to award the EIC to an actual parent, but if he can’t prove he had custody of them, then what do you think will happen?

  880. Admin Roberg on Sat, 4th Feb 2012 3:31 am
  881. Hi Melinda,
    Divorces are so difficult. I’d bet $100 that his wife filed as head of household instead of married filing separate. And she needs to change her tax return.
    So he can explain it nicely, and suggest politely that she needs to amend her tax return to married filing jointly and they can split the refund appropriately—or, he’ll be forced to file his tax return as married filing separatly–listing her as his wife, and claiming his children on his return. It will send her tax return into an audit and because she incorrectly filed as head of household (like I said, you can almost guarantee it) she’ll lose and have to pay that money back. Oopies.
    Now I can see her side–going through a divorce and not wanting to have to split money with her ex–but if she’s filing the right way–using married filing separate–then she’s really not getting much of a refund. It’s probably in her best interests to file jointly–if she’s doing a legal return.
    Now if it comes down to who gets to claim the child? The ex will win, because even though your son provided support–and the time he was in the service counts as being in the home–but when they split–she kept the child so she has more time and that will be the tie-breaker. So he’s only claiming the child to through her into an audit. This isn’t nice–but he needs to be able to make the threat to get her to do the right thing.
    Sorry for giving you such mean-spirited advice, but it might be your only option.

  882. Admin Roberg on Sat, 4th Feb 2012 3:41 am
  883. Hi Gloria,
    Well you got me. That doesn’t make any sense at all. So here’s my question–who makes the most money, you or him? Whoever makes the most should file as head of household. The other one should file as single. You claim the older two, let him claim the younger two. Then see what happens.
    If it goes into audit–well, you know the routine. If you get denied again–well that’s when you call me. (Or hire someone local.) You shouldn’t be denied.
    The only thing that would made any sense is if your partner had commited EIC fraud before and was banned from claiming it again–but even if that was true, the worst is for 10 years. You two have been together for 14–so that’s highly unlikely.
    Bottom line, I think your plan is good, and just be prepared if it comes to a fight. Good luck.

  884. Admin Roberg on Sat, 4th Feb 2012 3:47 am
  885. @ Chris,
    Yes, it’s quite possible that your ex will use the social security card to claim your child on her taxes. Also, if you go to a reputable tax service, they will ask to see the social security card and will not file your return without it.
    If she does, you know to file a paper return, etc. But not having the card is a problem.

  886. Paris on Sat, 4th Feb 2012 3:53 am
  887. Hello my question is a little different my sister was incarserated for 6months in 2010 I had custody of her untill my sister got out of jail being that I had custody of her for half of the year I claimed her on my 2010 taxes as did my sister I did not know this now we both received a letter saying the child was claimed twice being that I don’t like confrontation I just said that I would just remove my niece from my taxes and pay it back well my question is if I try and file my 2012 taxes will they hold my refund no papers has been filed and a friend of mine said to domt taxes get my refund then file the paper work I’m so confused

    Thanx
    Paris

  888. Admin Roberg on Sat, 4th Feb 2012 3:56 am
  889. Hi Amanda,
    Okay–what you need to do is file your tax returns claiming all of your children. That get’s the process started. You’ll have to paper file if they’ve already been claimed. You’ve read the other posts–this is going to take some time. Make sure you file as far back as 2008.
    You’re going to get the audit notice so get your ducks in a row because you’re going to have to prove you have custody of your kids and are responsible for them.
    You’re probably going to have to deal with this for several years.
    Stand firm–be strong, and eventually you’ll come out on top. Remember–maintaining a home for your children is what’s important as far as the IRS is concerned–the DNA test –not really. Keep your focus on things like school records and stuff like that.

  890. Admin Roberg on Sat, 4th Feb 2012 4:06 am
  891. Hey Paris,
    So you know that you’re going to be paying the taxes back no matter what. So do you really care if the IRS just keeps your refund? I mean, it’s the easiest way to pay them back–they’ll just keep adding interest, etc.
    So, will they keep your refund before you send the paperwork back? It depends on where they are in the process. I worked with a client who filed an amended return with the intention of having their tax refund used to pay off the balance due and they still got their refund back. It takes about 16 weeks for an amended return to be processed.
    Basically, if the IRS has already decided that you owe–it won’t matter when you file. If they’re still waiting for you to do something–you’ll probably get your refund even if you do amend your older return first.

  892. Admin Roberg on Sat, 4th Feb 2012 4:14 am
  893. Hey Hallie–
    you can’t claim your child because your mom claimed you as a dependent. But–your mom can claim your child as a dependent and claim EIC (if she qualifies). As the grandparent–and custodian–she has the right to claim your child on her tax return. At least for 2011.
    Now–about 2010–that’s going to depend upon when you separated. If your ex lived with your child for over 6 months–then he’s got a legitimate claim, but if you separated early in the year–then your mom could amend her 2010 return as well.

  894. Melinda on Sat, 4th Feb 2012 4:16 am
  895. Thanks for the info. I actually completed &to mailed out a 3949 form today stating to the Irs the false filing status that i believe she filed with. Since that was already mailed will it cause the irs to audit her? I’m thinking it may be best for my son to hold off filing his return until we see what happens with that? Of course if it takes too long then he’ll obviously have to file by 4/15. Thx again for your valuable advice!

  896. Rey on Sat, 4th Feb 2012 5:52 am
  897. hi.. what a great page of info! I have a scenario for you. My brother got custody of his three kids june 2011. He has lived with me since then and i was planning on claiming his kids as dependents until filing was rejected because his ex wife filed first. what should we do? File by mail including Form 8332 for the three kids? Plus costody papers and school papers for proof? We have the right to claim for EIC and child tax credit for full year right? Thank you…

  898. Joe on Sat, 4th Feb 2012 6:25 am
  899. So I go to file my taxes and claim my daughter like I have done foe the past several years with no problem might I add only to find out that I was told someone else claimed my child . Now keep in mind that me and my x both have joint custody but the child stays more time at my residents than she does at her mothers. My grandfather whom lives in the bacl yard actually keeps a ledger of the daily events like when she stay and when she goes back just in case she tries to come back and sue for custody. She recently got re married back in july 2011 thinking that the tax laws say the step child has to live with the step parents for 6 mnths and one day. What she didn’t realize what that meant 6 mnths and one day the whole year not till the point when she would be filling taxes. What my question im trying to get at is she went behind my back and let her husband claim my child with out my knowledge she is her self on disability so there for she has no income as far as the child goes. until she recently moves this man in. Now I have doctors receipts and also school showing where I have paid most of the money on the child through the year what can I do where she has allowed this man to claim my child with out me knowing. Please help and advice at all would be greatly appreciated!

  900. Rey on Sat, 4th Feb 2012 11:01 am
  901. This is what it said on turbo tax,”Dependent SSN on Line 6c column 2 of the return was used as a Dependent SSN in a previously filed tax return for the same tax period.”

  902. Admin Roberg on Sat, 4th Feb 2012 1:59 pm
  903. Rey–
    Hold on! You’ve got lots of issues.

    1. Your brother has the right to claim his children, not you.
    2. An 8332 form signed by his ex means the your brother, not you, has the right to claim his children for the dependency exemption and the child tax credit. He is not entitled to claim EIC.
    3. If your brother has custody of the children, and truly has had them for more than 6 months–why would his ex give him an 8332? If anything, it should be the other way around.
    4. If you do have a legal claim for filing the children–then you will sbumit a paper tax return–but do not submit the school papers and stuff with the tax return, it will only get lost.

    Most importantly, before you file a tax return claiming those children–go to the IRS website and make sure you have some basis to your claim: http://apps.irs.gov/app/eitc2011/SetLanguage.do?lang=en

    You’ve got some conflicting information in your post. I recommend hiring a professional or going to one of the free tax clinics to get some help before you submit your return. You really don’t want to open an audit if you’re not the one in the right.

  904. Admin Roberg on Sat, 4th Feb 2012 2:12 pm
  905. Hey Joe–
    A couple of things. First, I’m having a hard time getting past your grandfather living in the back yard. Certainly, what you mean and what I’m imagining are two different things. But, I’m thinking Grandfather’s journal is your saving grace.
    A few years back, my mom got involved in a lawsuit. One of the issues involved the days that something happened. My mom was already old back then and the lawyers for the other side were going to use her age and her “addled brain” against her. Now my mom, like your grandfather, keeps a calendar. Everything goes on that stupid calendar. And I mean everything. Well, when the lawyers were trying to prove she couldn’t remember stuff, my mom admitted it. She can’t remember anything, that’s why she wrote everything on the calendar. The calendar was admitted as evidence and my mom won the case.
    Your grandfather’s journal is your evidence that your daughter lives with you. It is priceless. Please go give your grandfather a hug from me.
    Now–one thing you said that does have me concerned–you said something about the child living with the step parents 6 months and 1 day. That’s all your ex needs to be able to claim your daughter. If your daughter lived with your ex fro 6 months and 1 day–then they do get to claim her. So make sure that Grandpa’s journal comes out in your favor.

  906. Rey on Sat, 4th Feb 2012 2:21 pm
  907. ok. I meant my brother signing form 8336 for me, so I could file them for child tax credit and dependency. And, my brother file his 3 three kids for EIC. We are trying to get the most out of this .. but the only thing was that efiling was rejected due to his ex filing them when my brother had court custody of them since June 2011. i know i cant get EIC for his kids.

  908. Admin Roberg on Sat, 4th Feb 2012 2:36 pm
  909. Hi Rey–
    Okay, now I understand. You brother is not allowed to sign an 8332 form for you. He can only sign that to his ex wife, not to you. It is the custodial parent releasing the exemption to the non-custodial parent.
    And, you live together, so even if you were the kids’ parent, you couldn’t do it because you two live together. (But–you can’t do it at all because you are not a parent of the children.)

    So you guys are trying to be smart and get the most out of the tax return, but you’d be crossing into illegal territory if you claimed those kids. And that’s not what you want to do. In your case, it’s actually kind of lucky that your return got rejected because you guys just made a mistake that would have had some sorry consequences had it gone through (IRS fraud letters aren’t anything you want to deal with.)

    So here’s what you do. You have your brother file and claim the kids for everything–EIC, head of household, child tax credit–the whole nine yards. Let him fight it out with his ex via the IRS–it sounds like he’s got a winning case. (If you really are supporting your brother–have him file as single instead of head of household, probably won’t change his refund.)

    You file your own return as you normally would.

    Hopefully a nice brother would use some of his tax refund to pay you some rent money or something for helping him out, but I have no control over that.

  910. Admin Roberg on Sat, 4th Feb 2012 2:40 pm
  911. @Melinda,
    I don’t know what will actually happen with the 3949 form. The IRS will never tell you what happens.
    Oh, and I forgot to mention it before, please tell you son from me, Thank you for your service to our country.

  912. Jen on Sat, 4th Feb 2012 8:18 pm
  913. Hello,
    I just divorced the father of my baby and we have joint custody 50% and 50%. last year I claimed my child (3 yr old) without a problem. This year when I went to file my taxes via internet, the tax preparer told me my ex-husband had already claimed my baby. My chid spends more time in my house than he doesin my ex-husbands house, beside that i have to pay for baby sitting and other expenses. Is there any legal way to audit him or do something so I can claim my baby.

  914. Admin Roberg on Sun, 5th Feb 2012 2:10 am
  915. So Jen,
    I’m guessing that you’ve already read the post about filing a paper return to claim your baby. That’s the way you start the audit process.

  916. Hoan on Sun, 5th Feb 2012 4:13 am
  917. What if the biologicaal mom claims consecutive years?

  918. Patrick on Sun, 5th Feb 2012 12:55 pm
  919. I just tried e-filing my return and it was rejected due to someone else claiming my child as a dependent, the only viable reason is my ex wife may have claimed her. I confronted her and she said she filed single with no dependents…my question or questions are 1) can her information from last year effect my claim this year?..in our divorce decree it states that we can claim our child alternating years….she claimed her last year and I am to this year. 2) can she fill out form 8332 now after she has already filed to clear this mess up?…would prefer the easiest way out and an audit process seems very intimidating and unnecessary if there is another option.

  920. Patrick on Sun, 5th Feb 2012 1:03 pm
  921. The IRS has already received a tax return with the same Social Security number or taxpayer identification number as your dependent’s (Form 2441: Child and Dependent Care Expenses). If the information on your return is correct, you won’t be able to e-file. You’ll need to print, sign, and mail your return.
    This is the error message I received….what does this all mean in non-irs language?

  922. Eric on Sun, 5th Feb 2012 1:39 pm
  923. Every year when my wife and i file our taxes we get flagged because her ex husband has already tried claiming her son, even though he lives with us all year and she has custody. and every year we have to overnight our tax returns with proof that the son lives with us. How is he able to get away with this year after year. You would think the IRS would have him profiled and red flagged. He needs to be charged with fraud because he knows the child does not live with him yet still he files each year. Who can we contact in the IRS to make him stop doing this??

  924. Admin Roberg on Sun, 5th Feb 2012 6:44 pm
  925. Hi Hoan,
    While the gene pool issue is important–what the IRS is looking at is who has physical custody of the child. If the biological mom doesn’t live with the kids–she can’t be claiming them.

  926. Admin Roberg on Sun, 5th Feb 2012 6:55 pm
  927. Hi Patrick,
    A couple of issues for you:
    1. Your wife claiming the kids last year should have no effect on your return this year. The IRS firmly claims that they review each year on a separate basis.
    2. Someone did claim your child. Even if it wasn’t your wife–someone did do it so you’re going to have to deal with the whole audit thing anyway. (And if it wasn’t your ex–don’t your really want to know?)
    3. Do you have custody or does your ex? If she has custody, she can still fill out the 8332 for you. I’m guessing that your return will still be rejected for e-file, but at least you’ll have the necessary paperwork. But here–who has the children?
    a. If you’ve got custody of the kids-no 8332.
    b. If you don’t have custody–she signs the 8332 and you get exemption and child tax credit–no EIC, no head of household
    c. If she has custody–why didn’t she claim her own children on her tax return?
    No one but the custodial parent or custodial relative may claim EIC on a tax return for a child–she can’t give that up to a boyfriend or somebody who doesn’t live with her–that would be fraud.
    I’m thinking you really want the audit–something’s rotten in Denmark. (Okay, we’re in the USA, but the quote was appropriate.)

  928. Gloria S. on Sun, 5th Feb 2012 6:57 pm
  929. Hi Again so I decided to do my boyfriend’s taxes including all our kids together (even though he has been denied in the past for our older ones) I have a big problem I need to resolve with old student loans before I can even file.

    My question is he did not quialify for the EIC on all 4 kids because of his income.And by what I understand he has been denied the EIC not the Child Tax Credit. Is that what Usually gets denied?

    I earn so much less and I’ve been reading here that I can claim the EIC but not the child tax credit? is that correct?

  930. Admin Roberg on Sun, 5th Feb 2012 7:07 pm
  931. Patrick,
    To answer your other question about a translation of: The IRS has already received a tax return with the same Social Security number or taxpayer identification number as your dependent’s (Form 2441: Child and Dependent Care Expenses).

    Oooooooo–I was going to just do my standard answer, but this is a little different. This is only talking about form 2441–that’s the form people use to claim a tax credit for day care. It doesn’t sound like they were denying your claim to the dependency exemption–just the day care.

    A couple of issues (sorry I know I’m long winded):
    1. Only the custodial parent can claim day care expenses–if you’re doing the 8332 non-custodial parent thing, then I think if you just take the day care credit off of your tax return, then you can e-file and be done.

    2. Wouldn’t that be nice and easy? Of course it would, but that’s why I’m guessing it might not be–Go back and look at the rejection notice. Is that all there is or does it scroll down and list a bunch more stuff? (My reject code in my tax program is a little box and sometimes it looks like there’s only one thing but you gotta scroll for all of it.)

    Anyway, if that’s all there is, lose form 2441 and you should be fine. Maybe not–if might get rejected again for something else. (Maybe something fixable, maybe not but you won’t know until you try.)

    By the way, this fixing and resending is not a “problem” as far as efiling goes. I once had to “fix” a tax return 6 times to get it to efile (weird problem with the child’s name.) If someone’s claimed your child that shouldn’t, then you will have to paper file, but if you’re just claiming dependency and child tax credit–if your ex did her paperwork correctly then you should still be able to e-file.

  932. Admin Roberg on Sun, 5th Feb 2012 7:21 pm
  933. Hi Eric,
    You and thousands of other people are victimized by people claiming their children every year. I’m in the process of putting together a petition to the Obama administration to prevent this type of abuse by providing parents that have won your type of claim for two years in a row a special pin number to use on their children’s social security numbers.
    We’re going to need 25,000 signatures to get the attention of the White House. I just drafted the petition yesterday and I sent it to someone who can actually write to fix it up. (Taxes–I’m pretty good, writing–well, needs some owrk. See what I mean?) Please come back to this site next week and I’ll have links to the petition web site.
    Will it work? I don’t know. I don’t have a lot of faith in politicians helping the American people these days. But if we don’t ask, we won’t get any relief. And you can see by the comments here that you’re not alone.
    Sorry, I don’t have a better answer for you. But maybe if we work together I’ll be able to give people some helpful answers instead of –so sorry, that’s just the way it is.

  934. Jan Roberg on Sun, 5th Feb 2012 7:32 pm
  935. Hey Gloria,
    I think the problem is there is a maximum of three children that you can claim EIC on. Your boyfriend got the child tax credit on all four because there’s no limit there.
    Since you and your boyfriend live together–you can’t split the exemptions–you can split the kids, but you can’t have him claim the child tax credit and you get EIC because you have the same address.
    Since you’ve got the student loan issue, it’s smart to let him claim all the kids–even if you’re losing out on some of the money.
    One more thing about the student loan–one of my clients had student loan problems and she made a payment arrangement with them. Once she got a certain number of payments made on time, they lifted the lien on her taxes. Since she had a refund coming, we just filed an extention in April and turned in her taxes later in September after the lien was removed. It’s worth a try–those student loans will hang over your head for the rest of your life so if you can get them under control and manage them instead of having them manage you it could make your life a lot easier. Good luck.

  936. Jill on Sun, 5th Feb 2012 7:59 pm
  937. Hi, I lived with my sister and her 2 young children for the enitre year of 2011 and supported the household … Is it ok for me to claim her 2 children with her permission and am I considered a custodial or non custodial parent when it comes to filing my taxes ..Any help would be appreciated thanks in advance.

  938. Admin Roberg on Sun, 5th Feb 2012 10:21 pm
  939. Jill,
    you meet the relationship and the residency test–those are the two big issues. The next big issue is can your sister claim them? If she can, then she should. If she chooses not to and lets you, that’s okay. It works fine for families that are trying to work together. It really stinks when you have a sister who says yes, and then turns around and claims her kid anyway because then you’re the one who loses out and gets blamed.
    You know your sister best. But–legally (from what I’m hearing) you can claim them as long as she doesn’t.

  940. Char on Mon, 6th Feb 2012 7:21 am
  941. Thank you very much for providing this article! I went into a panic last night when my e file was immediatley rejected due to my dependent’s SSN already being used this year as a dependent. Your article helped calm my racing heart! I am positive it was my ex. We divorced in 2005, but the child support was modified in 2010 which allowed for my ex to claim my son as a dependant for 2011 as long as his child support was paid in full through Dec 31. The permission to take the exemption came at the bottom of a page with the conditons to be met at the top of the next page… I am certain that he did not read that far. I am also certain that he claimed head of household and EIC… he just doesn’t know what he is doing and I am sure from the way we filed our taxes when we were lived together post-divorce led him to believe he could claim HOH and EIC. He hasn’t paid Child Support since June 2011 and hasn’t had a visit with my son since Aug 2010 so he is entitled to none of this. I am sure he has already received and spent his erroneous refund…

    My question: Should I include a copy of the child support mod (aka court order) with a copy from the Clerk of the Courts CS payment records when I mail in my taxes or wait until the IRS begins their audit? It will be easy for the IRS to determine that he should not have claimed HOH or EIC, but without supporting documentation of unpaid CS, it will not be clear that he was not entitled to take my son as an exemption in addition to the EIC and HOH. I do not qualify for the EIC- will that affect his ability to take it? Will the IRS hold him directly accountable for his incorrect tax filing, or will they make it my responsibility to fight him in court?

    Again, thank you for the time you spend sharing your knowledge and expertise!

  942. Mandy on Mon, 6th Feb 2012 9:55 am
  943. Hello,
    I currently live with my boyfriend of 9 years. I have a older son which is not his child as well as two other children that are his. I have full rights to the oldest boy b/c his dad isn’t around. I have already filed my taxes for 2011 and were exepted, and claimed all three kids on mine. I just realized that he is head of household and should be claiming them. He has not filed yet b/c he is self employed and is waiting on things still. So considering mine was done already and his hasn’t, how or what is the easiest way to fix this without putting up red flags? I can amend my taxes and take them off, and pay the difference back to irs or should I just take certain credits off mine. I made 18,000 and he makes roughly 27,000.

    Please help!! I need to fix this so we can get money fast!!

  944. SOPHIA STARR on Mon, 6th Feb 2012 9:10 pm
  945. My husband’s divorce paper state that he can claim one child and his ex wife can claim the other. For the past 2 years she has claimed both. We have been audited for the past 2 years and the IRS recently found it in our favor. She did it again this year. I understand that we will have to go though the same process again but because this is the 3rd year is there something we can do legally?

  946. Kristen on Tue, 7th Feb 2012 12:10 am
  947. my husband and I have been audited for our 2010 taxes due to his ex claiming their daughter as we did. I am able to prove by documentation that she lived with us, so Im hoping we shouldn’t have any issues. BUT I called the IRS to discuss it and they told me that the mother is listed as the custodial parent by social security because she is receiving aide somehow. Do you know much about this? Does that mean she is currently claiming aide? how did the IRS get that information and why would they deem that sufficient information? I’m blown away at how this woman (the ex) can walk into any office and claim the daughter and noone questions it. How can we find out if she is receiving financial assistance. She lies about everything, and so much of our energy is spend figuring out how we can rid ourselves of her actions. She has tried to pull her out of school without him knowing, she has tried to change her address at the doctors office, now it seems she is collecting aide. I honestly, as a woman, feel that our current system is too favored towards woman. Not all dads are deadbeat, but they are all treated that way. He has to have a lawyer for anyone to even listen to him, that is so not right. Im extremely frustrated with the system. Sorry, i just feel like sometimes dads need a voice too!

  948. Colleen Meehan on Tue, 7th Feb 2012 1:26 am
  949. Is there a way to find out if someone has already tried to claim or did claim your children?

  950. Admin Roberg on Tue, 7th Feb 2012 2:35 am
  951. Kristen–
    I don’t know–I think your husband is pretty lucky to have such a stanch advocate in you.
    But you’re right–Dad’s tend to get the short end of the stick when it comes to these issues. Back when I was working for one of the big tax companies I did a lot of EIC work. (That’s why I know this stuff, I used to do a lot of EIC audits.) One summer I did 8 EIC audits in a row–of the 8, 7 were men. The thing the men all had in common was that they claimed EIC for their kids but they didn’t claim a child care credit (form 2441.) There was a presumption that if you were a man and had a kid, you had to pay a daycare. I never did an EIC audit for a woman just because she didn’t pay for daycare. It’s stuff like that that makes you go hmmmmm.
    With privacy laws and such, I don’t know if there’s anyway to find out what she’s getting–but I do know that the IRS looks at paperwork from social workers to prove custody. But you said social security–that would mean the ex is claiming disability (or claiming that your husband’s dead?) I went to the social security website to check on reporting fraud: http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/48
    But you need so much information, I don’t know if you could answer all the questions. Still…
    I wish I could be more help. Sorry. But don’t give up the fight! You know you’re in the right. Good luck.

  952. Admin Roberg on Tue, 7th Feb 2012 2:47 am
  953. Hi Char–
    Here’s something you need to know: Your ex not only doesn’t get EIC and head of household–he can’t claim the dependency exemption and child tax credit either!

    Here’s why–your agreement has conditions–the condition that he pays child support. Even if he did pay his child support–it doesn’t matter, because the only thing the IRS cares about is a form called an 8332. For him to claim anything–you would have to sign a form 8332 to allow your ex to claim the dependency exemption and child tax credit. Your ex messed up.

    Now–all you have to do is paper file your return. Yes you’ll get the audit letter etc. but you just have to prove that you have physical custody for over half of the year.
    Do not send anything in with your return.

    When audit time comes you’ll want to provide school records and things like that. You do not have to prove he didn’t pay child support–the IRS doesn’t care. And, your ex’s tax debt is not your problem, it’s his. You asked about having to go to court–what’s your ex going to say? “Gee, I didn’t keep up my end of the bargain by paying my required child support so she filed taxes claiming my kid and WON the IRS case, so I’d like to sue for damages?” Okay, I’m not an attorney and I’m not allowed to give legal advice–but really–does he stand a chance? He made this mess, he gets to clean it up himself–oh, and that’s my professional tax opinion, not just my spouting off. You’re not his wife any longer–you can’t be held accountable for his current tax mistakes. And–it is HIS MISTAKE, not yours.

  954. Jessica on Tue, 7th Feb 2012 2:55 am
  955. So I tried to claim my daughter on taxes and it was rejected because someone used my daughter on their taxes. I’m assuming it was my ex and he is now back in jail. I am waiting for my audit papers and plan to send them in a.s.a.p but my question is how long does he have to return the papers ? He is homeless and in and out of jail so hard to locate. I was just wondering if he doesn’t respond, which I’m assuming he won’t, how long will they wait to make a decision ?

  956. Admin Roberg on Tue, 7th Feb 2012 2:58 am
  957. Hi Mandy,
    Because you’re a family (nine years together and two kids–you’re a family married or not.) Quick and dirty answer–just have him file too, as single and get it done. I can make a really good argument to make you head of household, I’m not concerned about that.

    Now–that’s the quick answer. Now there’s the “maximize your money” answer. I always say this–because you’re not married but living together–you can play this game. Whether you do it yourselves or work with a pro–you sit down and work out the biggest refund (smallest tax owed) by moving around your kids. Only you claim the oldest boy (because your boyfriend really can’t for EIC) but move the other two around between your returns until you max out our refund.

    When you do that, you should always be single and he should always be head of household–unless you’re claiming all three–then your boyfriend has to be single. And that’s okay–the kids are yours, you’re claiming them, that makes you head of household and him single.

    Now, lets say that you claiming the three isn’t your best option–wait until you receive your refund before you amend your tax return. Hope that helps.

  958. Admin Roberg on Tue, 7th Feb 2012 3:02 am
  959. Hi Sophia,
    Right now, there’s nothing you can do. I’m actually working on a petition to the Obama administration about that problem. If someone used your social security number fraudulently, you can get a pin number to protect your tax return. The IRS doesn’t do this for children’s numbers that have been misused. Please check in next week, I should have the petition up by then. Thanks. (We’re going to need 25,000 signatures to get them to even look at the issue so I’m really going to need your help.)

  960. Admin Roberg on Tue, 7th Feb 2012 3:12 am
  961. Hi Colleen,
    The easiest way to find out if someone has claimed your children on a tax return is to electronically file wth the IRS. If someone else has claimed your child, your federal tax return will automatically be rejected. You’ll get an error message that says you dependent’s social security number was used on another tax return.
    If you e-file and there’s no reject–if somebody tries to claim your child after you, their return will be rejected and they can’t do it without paper filing a return. If that happens, you will get a letter from the IRS asking you if you made a mistake. If you didn’t make a mistake, you just say no–and the audit process will begin.

  962. Admin Roberg on Tue, 7th Feb 2012 3:20 am
  963. Well Jessica–
    It sounds like you just won. It’s hard to raise a child while in jail or homeless so I think your ex just lost. Unfortunately, I’m not sure that’s going to speed up your case any faster. As far as timelines–I’ve been hearing 16 weeks, up to 5 months. Readers–anybody got any better numbers for Jessica? Maybe someone who had to do it last year? Thanks for your input.

  964. Wilbur on Tue, 7th Feb 2012 3:47 am
  965. my wife’s ex-husband is a real db. their divorce decree states they should alternate claiming one their boys every other year. last year she claimed the youngest, this year she is supposed to claim the oldest. this afternoon she received a txt saying he was claiming the oldest. because of the nature of our taxes, it is going to take longer to file and we are worried about our taxes getting rejected. is this something we will just have to wait and then file via mail and let the irs figure out? also, we were told that he would be unable to claim the child care exemption. is this true?

    thanks ~

  966. Larry on Tue, 7th Feb 2012 3:50 am
  967. Me and my baby’s mother have 50/50 custody, I pay child support, and we are suppose to alternate years for claiming our daughter. Our daughter is 4 years old and I have allowed her mother to claim her all 4 years. Now I am working and I feel it’s my turn rightfully so. So, I told her mother that I would be claiming her on this years forms and she said okay. Then a week or so later, after I already turned my forms in, she came back and said that she was going to be filing. I don’t know what to do. What are my chances at winning? I dont think its fair that she claims her for 4 years and the one year that I ask to she starts trouble. Can someone let me know what I am going up against? Thanks so much!

  968. Larry on Tue, 7th Feb 2012 3:53 am
  969. …Just wanted to add that we do have 50/50 custody in the court order but now that I am trying to file her, the mother keeps playing games on when I get to get my daughter. I’m thinking that she knows there will be an investigation and she is trying to intentionally keep her from me so she can say I didn’t have her. She ignores my calls and my requests to get her. Any suggestions?

  970. john on Tue, 7th Feb 2012 4:12 am
  971. Hi.
    My ex, Jane, claimed our daughter, Amy, on her taxes. Amy”s mom, Jane, doesn’t live with her. Amy doesn’t live with me either. She currently resides with her grandmother. Jane’s residence is unknown but probably uses her mother’s address as her permanent address. Jane doesn’t not contribute to Amy’s activities, school and other needs. I provide all of Ashley’s costs for living, school, medical purposes. In addition, I am with Ashley on a daily basis–yes, daily! Amy just “sleeps” at her grandmother’s home. Amy’s address on her school file is of her grandmother’s. All of Amy’s medical reports, reciepts show my address.

    How can I get this resolved with the IRS.?

  972. nisha on Tue, 7th Feb 2012 7:59 am
  973. back in 2009 my ex claimed our son without consulting me. I did’n’ find out until recently that I can reclaim the past EIC. It took me a while to get my old job’s W-2 since they moved. I just got that and rightfully our son at a year old lived with me all year. He visited his father a few times and when he was sick he registered at the hospital with his address and he shouldn’t have. I know when I submit the 2009 for the first time, I will get audited based on the answers I have read. All Of his insurance records, medical records, birth records have been registered with me. Does that matter in an audit?

  974. Jill on Tue, 7th Feb 2012 3:11 pm
  975. Hi again thanks for your quick response.. My other question was in the state of MA when filing my taxes it says I either have to be a custodial parent or a non-custodial parent when claiming dependents ..I dont know which I am although I know I cant be a custodial parent because theyre my nephews and their mom has custody of them so do I put that I am the non-custodial parent.. I live in the same apartment as my nephews and their mom..

  976. stephanie dietrich on Tue, 7th Feb 2012 5:05 pm
  977. I there a number you can call to reverse a tax refund. My ex claimed my daughter when I am the legal custodial parent and I provide all support for this child. I do not even get child support.

  978. Lynn on Tue, 7th Feb 2012 5:30 pm
  979. I have a question. My husband and I separated on November 26, 2010 after 23 years of marriage. He went and filed income taxes in January 2011, filing as married but separate, and claiming our two children. When I went to file, it was rejected. I tried to file married but separate also, but because I could not claim my higher education credits or my daughters higher education credits, it left me with a federal tax bill of 3300, and a state tax bill of 2,000, so I did not file. Now I am getting a notice about my missing 2010 return. Can I force my spouse to file an amended return for 2010? The funny thing is, we would have gotten a refund if we had filed a joint return.

  980. Randy on Tue, 7th Feb 2012 5:54 pm
  981. Well I have a reverse question I am divorced with 2 children and my ex wife has physical custody and we share joint custody.. she did not work last year and I have been paying over $700 a month in child support. she is on state assantance (i.e. food stamps and medicad) she lives with her parents. she refused to sign the 8332 form for me to be able to claim my children.. my thoughts are she is letting her father claim our kids.. is there any thing I can do??

  982. Anissa on Tue, 7th Feb 2012 6:35 pm
  983. Hi, I have a 7 old with my x whom I never married. I have never recieved child support from him. I am now married (almost two years now with someone new) and we moved out of state due to his employment. I filed for child support through this new state where I live and my x was the only person who attended the court for it in the state he lives in. child support was established, and he just recently started getting his paycheck garnished. I have not recieved any paperwork from either court. so I dont know what was agreed upon, and he says that the judge signed an order saying we had to take turns claiming our son on income tax. I never agreed to that and our son has always lived with me and my husband and i have been supporting him. I claimed him on our taxes and so did my x, but he says I will be in trouble because he has a court order saying he can claim him. Am i in trouble or not?

  984. Admin Roberg on Tue, 7th Feb 2012 9:32 pm
  985. Hi Wilbur,
    I don’t have enough information here. First, does the ex and your wife both have the boys an equal amount of time? (You know, like a perfectly 50/50 situaton?) Then the switching exemptions makes sense (kind of.)
    Otherwise, whoever has custody of the children can claim them–except for the divorce decree part that gives away the exemption and child tax credit.
    As far as the child care credit goes–the custodial parent gets to claim that–so the child care credit goes with the head of household and EIC.
    I hope that gives enough of an answer for your question. You won’t know the child has been claimed until you file and get rejected–and there’s no way to do a “pre-emptive strike”. Sorry.

  986. Admin Roberg on Tue, 7th Feb 2012 9:41 pm
  987. Hi Larry,
    First–your biggest challenge is going to be how many nights did your child sleep at your house. Do you really have 50/50 custody or are you a Wednesday evenings and every other weekend Daddy? I don’t mean that unkindly–that’s just the normal child custody arrangements in my neighborhood. (Cub Scout meetings on Wednesdays so the Dad’s could come, seriously.)
    If you have your child for MORE THAN (that part’s important) 6 months of the year–that’s 183 days–then you’ve got a fighting chance. If not, you’ll lose hands down.
    Now, if you don’t have custody–you might be able to persuade her to sign a form 8332 to allow you the exemption and the child tax credit–but unless you have some sort of court order decree or something, you can’t force that.
    Also, you let her claim your child for 4 years straight–which probably made sense at the time and everything, but you’ll probably face a little extra scrutiny if you try to claim your child. (You may have seen some of the other posts about men getting burned.)
    Now that doesn’t mean you can’t fight and win–If you truly have custody and truly are in the right–fight the good fight. Line up your proof. Just be prepared for the work, it won’t be easy and the burden of proof is going to be a little harder for you. Good luck.

  988. Admin Roberg on Tue, 7th Feb 2012 9:44 pm
  989. @Larry again,
    You might want to call your lawyer about the custody issue. I can’t help you with that, but I think you need some help.

  990. Admin Roberg on Tue, 7th Feb 2012 9:55 pm
  991. Hi John,
    This is going to sound like a smart aleck answer, but it’s not–get the name straight. Seriously. I’m guessing that you’re using made up names and then got confused (easy to do) but if you’ve got two different kids you’re talking about and you just messed up their names writting your note, you could wind up raising red flags when talking to the IRS. It’s one of the little tricks auditors do when working on a case. You sure as heck better know your kids names, birthdates, where they go to school, what their teacher’s name is, etc. It’s an easy trap to set and I gotta confess, guys fall into it easier than women. Consider that a warning.
    Now, back to the real issue (‘cuz I think you just confused the real name with the story name in there) you basically have custody of Amy/Ashley every day but she sleeps at Grandma’s house. That’s it, she just sleeps there.
    Here’s the question you have to answer: why does she sleep at Grandma’s? Is it because you work at night? (That’s a good answer.) Is it because the court said you can’t have your daughter at night (really bad answer.)
    There is an exception to the “sleeping at a house” rule if there is a valid reason–like parent has a night job. If you don’t have a valid reason, then the only person who can really claim your daughter is Grandma.

  992. Admin Roberg on Tue, 7th Feb 2012 10:00 pm
  993. Hi Nisha,
    Medical records, and insurance records are all helpful. The more evidence you can put together, the better. Was your child listed on your lease? Do you have any other proof that he lived with you? I’m a big fan of the immunization records (that’s a really custodial parent thing, isn’t it?)
    Basically, all the stuff you have is good. If you have more, that’s better, but I think you’ve got a decent case to proceed. Good luck.

  994. Mel on Wed, 8th Feb 2012 12:53 am
  995. Hi there. My divorce decree was final in Feb 2002…3 kids joint custody. There is nothing mentioned about who is to claim or file on the taxes. We went back in Feb 2006 and modified custody, parenting time and support. This modification states that we have joint custody with the mother (myself) having the kids 202 nights and with the father having them 163. Once again, there is nothing addressing who is to claim or not claim on the taxes.

    The kids are now all teenagers and this last year, they exceeded 202 overnights with me (I kept track of overnights). When I went to do my taxes this year, it came up about the form 8332 or the divorce decree stating that it was ok for my ex to claim the kids (he has me do 2 and 1…rotating every year). This is where I began to do some research and found that there is nothing documented on the divorce decree or the modification as to who or how to claim. I can tell you that the kids go to school in my district and this is their primary address for school and all medical and dental records…even states in the decree that they are in my school district.

    If I understand the IRS correctly, that since the children reside with me more than 50% of the time and I have proof and that since there is nothing stating that he can claim them, then I can claim them as I would be considered the custodial parent?

  996. Amira on Wed, 8th Feb 2012 1:00 am
  997. Thanks! I appreciate your support. Hopefully it won’t come to that, but if it does, you’re the first one I’m calling. :) Thanks again.

  998. Bob on Wed, 8th Feb 2012 5:23 am
  999. We e-filed our taxes this year and have already recieved our returns. Problem we have is we have a daughter that went to go live with her grandparents at the end of march. Well the grandparents filed and tried claiming her for all of 2011 and was rejected due to our daughter being clamied by someone else (us). I went back into the tax program and seen yes we did claim her by mistake for the whole year also instead of the 3 months she was with us. We didn’t claim her on EIC but she was for the child tax credit. I checked the the 1040A form and she added $1000 towards the tax credit but if she was removed and the $1000 was removed it didn’t change the return outcome. Well the grandparents made copies of the court papers and remailed their taxes in with the court papers without waiting for us to do anything. What we want to know is can we amend this with a 1040x and remove her, or will we have to deal with an audit? If we deal with the audit will it affect us for future returns? Should we go to our local irs office or call them and question this or no matter what is an audit headed this way?
    bob

  1000. Anissa on Wed, 8th Feb 2012 5:30 am
  1001. Hi, I have a 7 old with my x whom I never married. I have never recieved child support from him. I am now married (almost two years now with someone new) and we moved out of state due to his employment. I filed for child support through this new state where I live and my x was the only person who attended the court for it in the state he lives in. child support was established, and he just recently started getting his paycheck garnished. I have not recieved any paperwork from either court. so I dont know what was agreed upon, and he says that the judge signed an order saying we had to take turns claiming our son on income tax. I never agreed to that and our son has always lived with me and my husband and i have been supporting him. I claimed him on our taxes and so did my x, but he says I will be in trouble because he has a court order saying he can claim him. Am i in trouble or not?

  1002. Luisa on Wed, 8th Feb 2012 2:32 pm
  1003. Hi i have two daughters and they have been with me since they were born. Me and there father were never married and money wise since we were together he never helped out after we split pretty much he has not seen them nor does he give me child support for either child. I am more then certain that he claimed my youngest daughter on his taxes. What can i do?

  1004. kate brayman on Wed, 8th Feb 2012 7:04 pm
  1005. Admin Roberg:

    Here is my dilema~I’ve been divorced for 11 yrs I have a 13 yr old Daughter who hasn’t seen her father since 4th grade, no contact at all. He also hasn’t paid any of her medical, dental, vision, school, etc. you know where I’m going with that. Although, our divirce decree states everyother year we flip flop claiming her that’s when he was parenting her now that he’s MIA and not up-holding according to the tax laws his 50% of her bills nor does he have her 1/2 the year (not at all) nor is he involved in her academic success. He claimed her and I want to go after him for claiming a child that ultimately doesn’t exist to him. I filed my taxes they were rejected. I removed her because it said he claimed her. Now I want to file a claim against him with the IRS and let their investigation follow the written rules since obviously he doesn’t meet any of the requirements!

  1006. Tracy on Wed, 8th Feb 2012 11:36 pm
  1007. I’m hoping to clarify some things for my nephews. They are both over 18, and their dad has had custody for the past several years. However, neither of them actually lived with him during 2011 . . . they have lived with their paternal grandmother. My sister has paid child support to the dad. In the summer of 2011, my sister went to court to have them emancipated so that she could stop paying child-support for them. The older one is 19 and lived in an apartment at school until September, and since has lived with the paternal grandmother. The rent was split (mother & father each paid half) and my sister gave him $200 a month for expenses, and he worked. The younger one turned 18 in May, graduated from high school in June, and moved into an apartment on his own the first of July. He is a full-time student, paying mostly with loans and he works to pay his bills. My sister gives him some money and she pays his insurance and phone bill.

    Both boys want to claim themselves and file independently. However, their father says that he is going to claim them. The younger one is hoping to get more financial aid money if he claims himself. The way I read the rules, I don’t believe the dad has a right to claim them because neither of them lived with him for more than 1/2 the year. I have found a lot of information written for conflicts between two people wanting to claim the same child, but nothing for a conflict between the child and the parent. My sister is not trying to claim either of them.

    Can you give us some direction?

  1008. Admin Roberg on Thu, 9th Feb 2012 1:37 am
  1009. @Mel,
    You’ve got it right. You’re the custodial parent so you’ve got the rights. Now–remember, you and your ex have been working out an agreement for several years now, so unless he’s done something wrong–you might just want to keep your arrangement up–you know, if it ain’t broke, don’t fix it.
    But, to be technically correct–you should be claiming your kids for everything. If you want–you may sign a form 8332 to allow your ex to claim the dependency and the child tax credit for any number of your children.

  1010. Admin Roberg on Thu, 9th Feb 2012 2:28 am
  1011. Hy Jill in Massachusetts,
    I’m seeing it a little differently. You’re filing as head of household as per the rules and regulations for the federal return. Do not fill in the box that says you are a non-custodial parent–you’re not. And do not fill in the box that says you are releasing the exemption to a non-custodial parent–you’re not.
    Let me know if that doesn’t solve the issue.

  1012. Admin Roberg on Thu, 9th Feb 2012 2:43 am
  1013. @ Stephanie,
    Sorry, you can’t reverse any body else’s tax refund. (If I knew the secret, I’d be making a fortune!)
    Paper file your return and start the audit process. Sorry.

  1014. Admin Roberg on Thu, 9th Feb 2012 2:55 am
  1015. @Lynne,
    You can’t force your ex to file jointly. You’re going to have to persuade him that it’s in his best interests to do so. (By persuade I mean showing him how it benefits him–not threatening to run him over in the parking lot if he doesn’t. Although the later may at times be more tempting.)
    So–you know how much filing separate is going to hurt you–but you’re already late and you’ve got penalties and interest going too. So–if you file together, then how much is there to gain–for him? Right now, he’s holding all the cards so you’re going to have to make concessions to get him on your side. If filing jointly puts you into a refund mode–that could erase your fines and penalties. You’ve got over $5,000 in taxes, with fines and stuff you’re looking at over $6,000 that you’re going to owe. If there’s a refund there, you might want to just suck it up and offer him all of the money–because if he doesn’t go along with you–you will have to pay. Sorry.

  1016. Admin Roberg on Thu, 9th Feb 2012 3:01 am
  1017. @Randy-
    If your child actually lives with the grandparents (and your ex) your ex father-in-law may legally claim your daugher on his tax return because he has physical custody.
    Personally, I think that if a parent is paying child support, and paying in a timely fashion, that the custodial parent shoud sign the 8332. Not signing the 8332 is for the folks who don’t pay their child support.
    So here’s my question for you: what does your decree say? Do you have any rights in there? If yes, you may be able to enlist the help of your attorney (could also be more hassle than it’s worth.) Good luck.

  1018. Admin Roberg on Thu, 9th Feb 2012 3:10 am
  1019. Hey Anissa,
    Once again I have to say that I’m not an attorney and I’m not allowed to give legal advice. Here’s a post about court orders: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    You won’t be in trouble with the IRS, that I can say. Now I’m a little on the old and cranky side. So I gotta say–where’s the court decree? If he’s got one, he should fax you a copy immediately. If he’s really got a court document giving him the right to claim your child–why doesn’t your ex prove it. (I don’t know your mother, but I feel that she’s saying the same thing.)

    Even if he does have a court decree–the best he can get is the dependency exemption and the child tax credit–no EIC for him. But I’d bet you a cup of Starbucks that he doesn’t have a written decree. I could be wrong, but logic tells me that you, as the custodial parent, should have received a certified, notarized copy of something like that.

  1020. Admin Roberg on Thu, 9th Feb 2012 3:35 am
  1021. Hi Bob,
    I don’t get to say this very often: “No Problem!” Go ahead and amend your return. You’ll probably get a letter in the mail asking you if you want to amend (it might cross in the mail with your amendment.)
    You’re good, you’re doing the right thing. Everything should be fine.

  1022. Admin Roberg on Thu, 9th Feb 2012 3:55 am
  1023. @Louisa,
    submit your tax return claiming your youngest daughter by mail. It will start the whole audit process like I described in the original blog post–but it sounds like you’ve got a winning case. Good luck.

  1024. Admin Roberg on Thu, 9th Feb 2012 4:05 am
  1025. Ah Kate, you know what to do. You’re in the right. Double check the post about court ordered exemptions: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/ and make sure you cover your behind but I’m guessing you claim everything. Paper file, let the audit begin!

  1026. Admin Roberg on Thu, 9th Feb 2012 4:29 am
  1027. Hi Tracy,
    Okay you win the prize for “Oh my goodness, what do I say?” Wow.
    But here’s my take on it. After we sort everything out–the boys were emancipated through the courts. All the other stuff kind of doesn’t matter–they’re emancipated. So the boys claim themselves.
    Usually, I’m amending returns because children claimed themselves and shouldn’t have. But in this case–they’ve got the emancipation issue on their side. I can’t see the dad winning this one.

  1028. Bill and Dana on Thu, 9th Feb 2012 12:43 pm
  1029. Jan,
    first, i just wanted to say thank you. Your insight has been so helpful and I know everyone appreciates the time you have taken to share your knowledge.

    My Wife and I had the kids 350 nights last year they lived with us and we provided for all of their expences. Her ex-filled 2 of the kids on his return. He made little (<15K) last year and I am 100% sure that he lied regarding where the children lived so that he would be able to claim the EIC.
    The weird thing here is that while the kids are with us full time and have been for going on three years, the custody order states that HE has custody of the kids 5 nights every week. We never spent the money to modify the agreement to keep things peaceful. We are lawyering up now because we realize this dead beat will always just do what is in his best interest.
    It will be easy for us to prove the kids were with us the full year, and we paid for everything and we plan to file a paper return and respond to the audit per your advice.
    Do we have anything to worry about?
    What are the consequences for him since this will show he obviously lied on his returns?
    Since he just filed first within the last few days, will our paper filing prevent him for getting his refund while the audit takes place?
    Will calling the IRS to report the infraction be beneficial?

    THANK YOU SO MUCH IN ADVACE! YOU ROCK.

  1030. jessie on Thu, 9th Feb 2012 8:04 pm
  1031. hi, first i think its great that you offer your expertise here. ok well , i and my ex gf seperated a couple years ago, she ttook me to court trying to get full custody, but we recieved joint but we didnt get the order stamped although the judge agreed to it ,so i have them one week she has one week 2 children. she is taking me to court again because i missed a few weeks of my time because i had to do a rehab but resumed as soon as i got back home say it was like 5 of my weeks missed for the year for past two returns she claimed youngest i claimed oldest and it was fine this year she rushed and filed both claiming the extra time she had entitled her to it. well i carry the insurance and i have taken them to doctors the school bus transports them my house one week her house the other week , we had the erbal agreement but she saw an opportunity. i’ve read some of the responses but wonder if you could comment on my situation. thank you

  1032. Dan Kurtz on Thu, 9th Feb 2012 8:06 pm
  1033. I got a divorce in 2002. In the papers I let my ex claim my son every other year. (only way to get her to stop the fighting). My son is now 19 yrs of age and goes to college. My son has not had any contact with his mother in the past 2 years. She never had to pay any child support (another thing to make her agree). He has lived with me in my home since 2002 and me and my new wife support him 100% We pay for living expences (our home) we pay for his college with no help at all from his mother. Well she thinks because hes 19 and still going to school she still gets to claim him. My taxes were returned (electronically) because she claimed him. Well I have the paperwork showing he lives in my home, I pay for schooling etc. My son also wrote a letter stating he lives in my home with no support in anyway from his mother and I pay for all of his expeces. He even had it notoerized. I wrote a letter ( also notorized) stating the same thing. I am sending the proof from the school showing he lives her as well. What do you think my chances are that I will still get to claim my 19 yr old even after she filed and got her money already? Do you think it will still be a big fight? I am sending all the paperwork in with my tax paperwork.

  1034. Sara on Thu, 9th Feb 2012 8:13 pm
  1035. Hi! I tried filing my taxes with a company this year and lo and behold my ex (who hasn’t seen the dependent since 2008 and lives in another state) had already filed and claimed my daughter. My return was rejected electronically and i’ve spoken with IRS and they were telling me how I need to have my preparer print out my return and send it through the mail. Here’s the problem….my preparer says that they cannot print off my return to send in until I pay the fee of $260. I don’t have the money to pay them and won’t which is exactly why it would’ve been taken out of my taxes. Someone had suggested that I refile my taxes but leave my dependent out and file with just myself and whenever I can get the dependent situation taken care of then I should receive back taxes that I’m owed…Can I do that or will that screw with my taxes more because I had already tried filing and have to get this situation taken care of? Should I refile but with just myself?

  1036. Lea on Thu, 9th Feb 2012 8:40 pm
  1037. My husband has two kids with his ex, they never married but their Custody Agreement states they each claim one child at tax time. Custody is 50/50. My husband has always claimed the younger child and the mother always claims the older child.

    In 2009 the mother signed a form similar to the 8332 stating she was giving her custodial rights of the older child to my husband. My husband filed his taxes electronically and they were denied because the kids had already been claimed by someone else. the mother had turned right around after signing the form, filed her taxes and claimed both kids. My husband was in the right to claim the younger one but went ahead and filed via paper claiming the older one as well since the mother signed the paper. In 2010 my husband was audited and had to prove he was able to claim both kids. Long story short and four months later the IRS deemed my husband in the right for claiming them both.

    Here comes the question part….we filed our 2011 taxes already. Now the mother wants us to claim the older child again. She signed Form 8332 and gave it to us. We are not eligible for EIC. What do we do? Do we file an amendment and get the additional return? Will this throw a red flag to the IRS since we just went through this? Will the IRS consider this tax fraud even though my husband was not custodial for the older child in 2011? I’m really leery about doing the amendment because the IRS scares me and I don’t want them breathing down our neck anymore.

    Thanks!

  1038. Ashley on Thu, 9th Feb 2012 10:16 pm
  1039. I found out my ex filed for my 2 year old daughter behind my back. I understand you have to mail in the tax forms instead and now have done so. I know I have all the proof I need to show I am her caretaker and head of household. My ex has no house and lives with his grandma, and my daughter has never lived with him. I get no child support and have never been to court over custody. I just fear that I won’t see my tax refund for a long time. I am wondering what is the length of time they will give him for a deadline to prove his case, and also how long will I have to wait after that deadline?When should I expect to see my refund?

  1040. Jason on Fri, 10th Feb 2012 2:59 am
  1041. Divorced in 2009 with 2 children. Decree says i claim 1 child she claims the other, every year. That year my ex claimed both kids. I mailed my return in claiming the 1 child that i’m supposed to claim. Went through the audit, I won i eventually received my return. In 2010 i filed first (just claimed the child i’m entitled to)so i didn’t have any trouble. Yesterday my return was rejected. So i mailed it in just like i did in 09. Will i have to go through the audit process like in 09 or does the irs keep records that this has happened before and they found me to be in the right? We have joint legal and joint physical custody.
    Thank you,
    Jason

  1042. Admin Roberg on Sat, 11th Feb 2012 1:42 am
  1043. Hi Bill and Dana,
    I’m such an incredible geek, no body would ever say I rock–I’ll enjoy the compliment while I can. Thank you.
    Now for your issues:
    1. I don’t think anybody actually has their kids on the days that’s on their divorce decree. The IRS is fully aware of that and they don’t even look at those pages.
    2. You prove your child lives with you through school and medical records–I think it’s a no brainer for you.
    3. The consequences for the ex will be eventually paying the money back. (For a small fee I run exes over with my car, but now I drive a Mini Cooper, it doesn’t hurt them very much. ((No, I don’t really do that–my lawyer says I can’t say that online.))
    4. No, filing fast won’t prevent him from getting his refund while the audit takes place. He’ll have his money in his hand before the IRS even opens your envelope. Sorry.

    I have 100% confidence that you will win your audit. It’s just going to be a pain in the behind to go through it.

  1044. Brandi on Sat, 11th Feb 2012 5:16 pm
  1045. When the IRS sends the documents and they ask for proof my question is do they ask for dated papers??

  1046. Admin Roberg on Sat, 11th Feb 2012 11:01 pm
  1047. Hey Jessie,
    You really want me to comment? You had a fair 50/50 agreement but you were physically unable to meet your protion for five weeks? Doesn’t quite seem fair. The law and the rules are all on her side so I’m not going to be much help. But let me throw something out here–just in case.
    You mention rehab–like were you in drug and alcohol rehab or were you injured in like a car accident rehab? The reason I’m asking is–if it was drugs or alcohol–your ex could make a pretty good case that you were totally incapable of caring for the kids even before you went to rehab–you know the story. Don’t even try–you won’t have a chance.
    But–if you were in physical therapy rehab–like after an accident–you might actually have a case because there’s exceptions for things like being in the military, being at school, etc. Being in rehab would be one of them. (My next door neighbor fell and was in rehab for 6 weeks. Rehab has different meanings.)
    You know your own story–you know what to do from here.

  1048. Admin Roberg on Sat, 11th Feb 2012 11:05 pm
  1049. Hi Dan,
    It’s all going to come down to your documents. See: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    It sounds to me like she has no conditions on her for claiming your son–point in her favor. But–he’s over 18. What do your documents say? Some have the exemption issue ending at 18–some include it throught college. Your answer is going to lie there. Good luck though. I really think that the parent paying the tuition should get the exemption–but that’s my opinion, not tax law. Sorry.

  1050. Liz on Sat, 11th Feb 2012 11:28 pm
  1051. I am wondering if my ex (we divorced in 2007) could claim our two children. One is 14 years old and the other is 22 but is disabled (he has cerebral palsy). My ex doesn’t pay any support out of his own pocket, we get SSDI through my ex’x benefits but my ex makes an additional $1,000 dollars through a paper route every month but none of that money is figured into or used for our two boys’ support. I don’t work, I stay home and we live from the benefits from SSDI. My ex doesn’t see the boys except once a year for a couple hours but he and his fiancée had a baby last month and I’m afraid now he will have no contact with our two sons at all. I can’t find anything in our divorce papers about claiming them for tax purposes. I’m curious to know if he can claim our kids even though the ‘child support’ doesn’t come out of his own pocket? It may seem petty but I’ve asked him to help with school fees but he says he cannot afford to, he tells me to get off my lazy fat … you know what and get a job. I just think it’s ludicrous that he’d be able to claim taxes on children he chooses to ignore except when it comes to putting their names to paper once a year so he can get some extra money.

  1052. Admin Roberg on Sat, 11th Feb 2012 11:47 pm
  1053. Hi Sara,
    You’ve got the question that gets asked thousands of times every year. I have two answers:

    First: try taking your child off as a dependent and leaving her on for Head of Household and EIC–see if your return files that way. (I doubt it will go through, but there’s a possibility.)

    Second–If that doesn’t work–you can file with just yourself, then paper file later with an amended return. There are two issues there–I bet the “tax company” charges you more to do that, and it’s frowned upon at the IRS. (Don’t let the IRS frowning stop you–you do what you have to do to make ends meet.)

    I said two issues but here’s a third one. (You’d think an accountant could count.) Anyway, why not file it yourself? You can go to the IRS website and do the “free file” forms. You can print those. Or you can at least look at them and copy them onto a paper form. Use your last years tax return for a comparison. Or, go to one of the free tax help places: http://irs.treasury.gov/freetaxprep/

    Now you’ve got some options.

  1054. Admin Roberg on Sat, 11th Feb 2012 11:51 pm
  1055. Hi Lea,
    I love telling people that they don’t have a problem! And you don’t. Remember–you won your case last time. And once again, you’ve got documentation. You’re not going to claim EIC–you’re only going to claim the exemption (and the child tax credit if the child is under 17)–that’s all.
    Go ahead and amend your return and submit the documentation. You’re good to go.

  1056. Admin Roberg on Sat, 11th Feb 2012 11:53 pm
  1057. Hi Ashley,
    You’ve done everything right. congratulations. Now the hard part is the waiting. What I’m hearing from people is 4 – 5 months. If anybody’s got some different numbers please make a post and share. That’s information everybody wants. But so far–people are telling me 4 – 5 months.

  1058. Admin Roberg on Sun, 12th Feb 2012 12:12 am
  1059. So sorry Jason,
    You’re going to go through this all over again. But at least you know what you’re doing and you know you’re going to win.

  1060. Tamar on Sun, 12th Feb 2012 3:52 am
  1061. I have the same issue as most of the parents on her. I have been divorced since 2009. I have three children from him. My ex-hub was evading the IRS for about three years because he owed them money. (while he and I were married, I would claim HOH b/c he spent so much time in the streets cheating he was never home, I kept track) I never allowed him to claim our children. In 2010 he took my info for my 2009 taxes and claimed all three of my kids, who had not lived with him in 2009! I went to the IRS and did the audit. In our divorce, I am the custodial parent, I pay out of pocket for childcare, I pay medical bill, clothes, food, I DO IT ALL. He is thousands of dollars behind in child support. He has claimed one of my kids already causing my taxes to be rejected. Even though our decree says one thing, doesn’t the IRS look at who the children have lived with throughout the entire calendar year? My kids have seen him maybe 77 days out of the year of 2011. He has not worked in almost two years, and has been living off of unemployment. I am not going to be able to talk to him about this like an adult. His justification is “they are his kids as well, and as long as I am paying what the courts tell me to, I’m good” Help me please. Thanks in advance.

  1062. jim on Sun, 12th Feb 2012 5:49 am
  1063. Hi,me and my ex were never married,she just up and left and has not really been in my sons life to much.He is 5 years old and has lived with me from the day he was born.I have claimed him every year.I went to fill my taxes out and got rejected becouse someone claimed him,wich i know was my ex or her mom.I have all kinds of proof that he has lived with me.Can you please tell me what i need to do.

  1064. Admin Roberg on Sun, 12th Feb 2012 3:21 pm
  1065. @ Brandi,
    That’s a great questions–does the IRS want “dated” papers? Absolutely yes. Especially when you’re dealing with things like “when did the child live with you?” You’re going to want dates–proof of the year, month, time, etc.
    You really want dates to substantiate any claim you’ve got.

  1066. Admin Roberg on Sun, 12th Feb 2012 3:27 pm
  1067. Hi Liz,
    Your ex really can’t claim your boys. The hard part is how to stop him–you have nothing to report on a tax return. But you can file a zero balance tax return, just to get the boys’ social security numbers in use. It doesn’t do you any good, but it does help put an end to his fraud.

  1068. Mark on Sun, 12th Feb 2012 3:30 pm
  1069. Hi my ex and I have been divorced for 6 years the decree states we alternate tax years odd years being mine and even hers. Our daughter is now 20yrs old and attends college she was taking out student loans but my ex informed me that she has paid for college this year and is trying to take the deduction even though 2011 is my year. Can she just go against the divorce decree and take this deduction or do I have to agree and fill out a form saying its okay? My daughter has a full time job in the summer and stays with a friend close to her work. will my ex be able to claim her even though my daughter doesn’t really live with her when she is not in school?
    Thanks.

  1070. Admin Roberg on Sun, 12th Feb 2012 3:45 pm
  1071. Hey Tamar,
    You already know what I’m going to say. You’re going to have to paper file. You’re going to have to win the audit again. Yes we need to change the laws so that guys like him can’t keep doing it.
    Dot your “i”ts, cross your “t”s and keep good records. Forgive me but I’m going to scold you a little bit here: you know what he’s like–how’d he get ahold of your tax return if you don’t file together?
    Everybody, listen up–you’ve got to protect your information.
    And yeah, Tamar. I get it. You were married. He is the father of your kids. It’s kind of hard to keep information from him.

  1072. Kyle on Sun, 12th Feb 2012 6:01 pm
  1073. I have joint custody of my son with my ex. We have a temporary order from 2009 that says each of us gets to claim him every other year. In the middle of October of 2011 he left the state and I had my son longer than was agreed on. I told him I was going to file for my son on my taxes and he told me he would put me in jail and I would lose my son. But during most of our joint cusoty I had my son longer and he filed already. I have paperwork proving I had him longer than he did. What can I do?

  1074. Admin Roberg on Sun, 12th Feb 2012 8:30 pm
  1075. @Jim,
    Just like the blog post at the top of the page says. You start by printing out your tax return and mailing it in. It sounds like you’ve got a winning case so get started.

  1076. Admin Roberg on Sun, 12th Feb 2012 9:08 pm
  1077. Hey Mark,
    You’ve got a tricky problem but at least you talk to your ex.

    Issue 1: your decree says that you get to claim alternate years. If there are no conditions-like paying child support, then you just have to mail in your tax return with the decree pages attached.

    Issue 2: who is the custodial parent? I’m guessing that it’s your ex, is that correct? Does your daughter ever live with you? I’m thinking no so that’s not an issue here. Kids in college that are claimed as dependents are generaly considered to be living with their parents while at school. If your daughter does not live with you, then there is no need for you to issue an 8332 to your ex for her to claim your daughter.

    Issue 3: the American Opportunity Credit–can be worth up to $2500 on the tax return. That’s what’s at stake here. Did you pay the tuition for your daughter? That’s a pretty big tax credit. If your ex paid our daughter’s tuition and you didn’t help, well you can see where she’s going with that. Right or wrong–this is what you’re fighting over right here.

    Issue 4: When does your entitlement to claim your daughter end? At 18 or at 21? You need to know the answer to that question before you start your fight.

    So, now that you know the issues-what do you do?

    First-determine if you have any grounds to stand on.

    Second, if you do–it’s probably best to talk to the ex first. That $2500 is a lot of money, and if that can be used to help pay your daughter’s tuition for next year–you two should consider a deal–remember–you always want to work for the highest and best interests of your child, remember?

  1078. Admin Roberg on Sun, 12th Feb 2012 9:37 pm
  1079. Hey Kyle,
    so your ex leaves the state and you are taking care of your child so you claim your son on your taxes and now your ex wants to put you in jail for being the responsible parent? Am I hearing this right?
    This kind of reminds me of when my daughter was little, she started a pet sitting business and was taking care of a guinea pig while a family was on vacation. The family came back and never picked up their guinea pig–they didn’t want it. Then they wanted my daughter to give them her pet hamster as payment for the guinea pig that they dumped on us. Say what?
    Now–in the grand scheme of things, your son is way more important than a guinea pig, and I guess that’s why I’m so shocked, “I’m going to have you thrown in jail for doing the right thing!” I’m sorry, I’m just beside myself here.
    Back to business.

    There’s a big difference between “joint custody” in a divorce decree/separation agreement and “joint custody” as far as IRS rules are concerned.

    Let’s assume that you really did have true “joint custody” 50/50 all the time up until that point where he left the state in mid-October. Nine and one half months–divided by two equals five and one quarter months. (I’m so glad I learned fractions in elementary school.) So you had your child for 5 1/4 months plus the additional 2 and 1/2 months which gives you custody for 7 and 3/4 months, while your ex only has 5 and 1/4. And that time spent out of state doesn’t really help his case at all.

    So–you’ve got the custody issue solid; You can claim head of household and EIC. I’m guessing that it’s his year to claim? The best he can get is the dependency exemption and the child tax credit. See this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/comment-page-1/#comment-5243
    This is his only decent argument.

    Now, technically, since your agreement was in 2009–you have to provide him with a form 8332 to claim your child on his tax return. Since you do have a written agreement, that is the right thing to do. You should amend your return and sign the 8332. You should do the right thing. (I, on the other hand, don’t like bullies and would like to smack him upside the head a few times.)

    By the way, for what it’s worth, the guinea pig’s name was Suzy and she turned out to be a very nice pet. We kept the hamster too.

  1080. BRIAN on Mon, 13th Feb 2012 3:42 am
  1081. I have a questions, i am divorced and have two kids, the divorce papers states that we both can use one child as a dependant until one is not eligible then we have to alternate years with the other child. last year i didn’t claim a child because my daughter in not eligible, this year i told my ex it was my year to claim my son, she went ahead and claimed him anyway, Is there anything i can do?

  1082. Ashley on Mon, 13th Feb 2012 4:02 pm
  1083. Hello, my husband has a child with his ex girlfriend, he just turned 5. We have a court order signed by a judge and entered into our file that allows us to claim his son every year on our tax returns. Of course the mother was livid about this. In our defense, we only asked for every other year and the judge gave us every year. Anyway, when she found this out she told me that she refused to sign any documents to allow us to do so, the court order states she is required to do so. To make a long story short, she went ahead and claimed him on her returns so of course ours got kicked out from the IRS. My question is we are in the right to have claimed him since we have the court order correct? And she is in blatant contempt of court for completely disregarding the court order? We just spoke with the IRS this morning and they told us to print and mail our return, so we have not started the process yet.

  1084. Jacqueline on Mon, 13th Feb 2012 5:02 pm
  1085. My son was diagnosed with brain cancer in October 2010 after he was released he came too live with me. I continued to pay child support he was in school he has been with me an I have provided 100% support since. The attorney general didn’t get us a court date till August 2011 but he was in my care the entire time. I had to fight for him to ever visit and from August he hasn’t spoken to me or his son then he goes and claims him on his 2012 taxes. Can I just mail my return with my proof because because of all the drs an chemo and bills my house is about to be foreclosed on and I need my return

  1086. geri yang on Mon, 13th Feb 2012 6:36 pm
  1087. my husband and i are separated but we’re not legally separated nor divorce. so basically still legally married. we had gone thru some very rough times and we had gotten CPS involved as well. but then then my ex husband failed on his part n I’ve completed my courses of requirements. and so i was the custody of my kids. i had gone a filed for custody as well but i haven’t heard anything from the courts. maybe he hasn’t respond for like a good 2 year now. so he has no custody nor any rights of my kids beside being the father. my father has been providing and taking care of my children and myself since my ex and i had separated. but wen my father files for his tax return, he was told that my children has already been claimed already. this has happened two times in a row. how can i as the mother put a stop to this. plus there is no other possible person who can be able to claim besides my ex husband only. there is no way i can even ask my ex husband if he had claimed my children or not. please can u help me with any suggestions to get this resolved. thank you.

  1088. Sharon Denise on Mon, 13th Feb 2012 7:31 pm
  1089. My question is this: The Agreed Order we entered into on April 26, 2011 is in regards to my youngest child. The only mention made of the oldest child was in section two where it states: “2. That the parties are the parents of two children, namely Baby A the youngest child , and Baby B the oldest child. Baby B will be emancipated next month and graduate from High School next month.”

    That is the ONLY mention made of THE OLDEST CHILD because she is not subject to this Agreed Order. After stating that the oldest child is emancipated, the entire order goes on to talk specifically (or namely, as they put it) about the youngest child. This is evidenced by the language throughout the entire document.

    Furthermore the Agreed Order goes on to state:
    “3. The parties have entered into a new shared parenting plan which they believe is in the best interests of their CHILD:
    a. Mother shall be residential parent of Baby A, the youngest child. ”

    The order then goes on to say in section 4, “For the tax year 2011, each party shall claim the CHILD as set forth in the prior order of this Court.”

    Please note: The prior order of the court states that for the above named child, the mother would claim her on her taxes”.

    which brings us to IRS PUBLICATION 17 (2011) PAGE 29 Example 5 – Child emancipated in May. (which my oldest child WAS emanncipated in May when she turned 18). The special rule for children of divorced or separated parents does not apply. Therefore, You cannot claim a person as a dependent unless that person is your qualifying child or qualifying relative.
    TO BE A QUALIFYING CHILD:

    1. The child must be your son or daughter.
    2. The child must be under 24 at the end of the year and a full time student.
    3. The child must have lived with you more than half the year.
    4. The child must not have provided more than half of his or her own support for the year.
    5. The child is not filing a joint return for the year.

    Since the oldest child turned 18 in May AND did not live with her father for more than half the year (she lived with him a total of 4 weeks if you combine it all) AND he did not provide for her financially after her emancipation date she does not qualify as a qualifying child for his household and he cannot claim her on his taxes.

    Do you feel my reading of the tax codes and the application of the codes to my papers is accurate? I quoted the verbage of the papers verbatim to you in the above conversation.

  1090. Lii Sutherland on Mon, 13th Feb 2012 8:28 pm
  1091. Hi, I got a divorce in DEC 2009. In my divorce decree it states that I will claim my youngest child every year as long as Im current on my child support. I am current on my child support payments. My ex-husband is the primary parent having joint custody with me. My ex-husband is supposed to claim my daughter and I claim my son. Last year he claimed both children, and I couldn’t really fight it since I was deployed in Afghanistan. I tried to file for my 2011 taxes and claim my son, but it was rejected by the IRS.

    So I sent the form 8332 by email to the ex-husband to sign. But he has yet to sign the form, to give me permission to file for my son. My divorce decree states other-wise. What do I do, if he refuses to sign the FORM 8332? Do I need to hire a lawyer? I want to fight this matter, but not sure where to begin. Any info will be helpful.

    Also, currently serving in the military and I don’t have the money for a lawyer.

  1092. crystal on Mon, 13th Feb 2012 11:49 pm
  1093. Hello ok here goes my qestion. Me and my baby daddy have never been marrie.But in 2010 we went through a custody battle. Judge ruled he have him 4 days out of thr week giving him an rxtra day more than me. I still remained custodial parent and it was ordered for him to pay child support. On the court order it sttes we claim our son one year one next the otjer. But he now is saysing since he has him that xtra day out of the week he is entitled to claim him from now on . Id this trie? can i figjt it since he lready claimed it this year?

  1094. jessie on Tue, 14th Feb 2012 12:19 am
  1095. thank you for the comment , yeah i guess it isn’t the best thing to bring up but hey its just my first name, it doesn’t seem fair it was more like four of my weeks total because she made me keep them two weeks once, which i wouldn’t object to because i love having them around. i saw on tax prep since i was going to file paper (and i still might, i wonder if there is a penalty for trying i have documentation showing my time, insurance , copy of school busing , and they are on my food stamp case ) that even if it were equal time that the parent with the higher agi is the one to win. i have two kids and if i have them half a year it doesn’t seem right that i wouldn’t be entitled to claim one if i had them both for half a year. for me its not the money although it helps i maintain my custody so i can be a good father for my children, and i’m starting to think all her custody hassle has been so she can get a larger tax return. if its possible there is anything else you could enlighten me on, it maybe is something better for email and not a post , but thank you very much , like what about the higher agi thing , i dont plan on problems splitting time this year but i will be in school and working she does give me any money so i cover living expenses for me and kids when they are here but i would most likely still have a lower agi and not qualify for any tax credit?

  1096. jessie on Tue, 14th Feb 2012 12:42 am
  1097. actually i will just file normal tax without the dependent, and after this round of custody trials have it added to the order that there is alternating tax year filing like ive seen mentioned in other posts and have this next filing season be my first, but i would like to know about the agi part that i mentioned. how does that work?

  1098. Admin Roberg on Tue, 14th Feb 2012 2:19 am
  1099. Hi Brian,
    You need to read this: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    Basically, if you have no conditions and your divorce was during the right time period, you can just attach the pages of your divorce decree showing that you’re allowed to claim your child on your return.

    If you have conditions, or were divorced after 2008, then you’ll need your ex to sign a form 8332 for you. Which she won’t because she already claimed your child. So–then you’ll need to talk to your attorney. Sorry.

  1100. Admin Roberg on Tue, 14th Feb 2012 2:42 am
  1101. Hey Ashley,
    This is for you: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    It tells about court ordered exemptions and how the IRS treats things. If the IRS told you to paper file your return, I’m guessing they already asked you all the relevant questions and that’s what you should do. (But double check the post just to be safe.)

  1102. Admin Roberg on Tue, 14th Feb 2012 3:00 am
  1103. @Jacqueline,
    I’m sorry but your ex is a scumbag. Your kid has brain cancer. Brain cancer, for cryin’ out loud. How low can the dude possibly sink? I’ve heard lots of stories about deadbeat parents, sneaky exes, and just plain old bad people but I think yours takes the cake. I’m sorry, but that just makes me mad.
    Pardon me, you weren’t asking my opinion, you just wanted some tax advice. Sorry.

    Ahem. My professional opinion is that you should paper file your tax return. Don’t send the proof, it will just delay the process. (Plus the IRS will lose it anyway.)

    Do talk to the bank about the foreclosure. Explain the situation and that you will be receiving your tax refund but it will be delayed. There was just a big settlement with the big banks the the Attorney Generals from several states–I’m guessing they don’t want to be accused of foreclosing on anyone without doing all of their due diligence. It might not do you any good, but it certainly won’t hurt.

  1104. Admin Roberg on Tue, 14th Feb 2012 3:04 am
  1105. Hi Geri,
    As I understand it, you and your child have lived with your father for 2 years. Your father provides all of the support for the two of you. Your husband, although still married to you, is completely out of the picture? Is that correct?

    If yes, have your father paper file his tax return claiming all of the benefits he may be entitled to: head of household, eic, dependency exemption, and child tax credit.

    It will go into audit and your Dad will win because you folks have custody of the child.

  1106. Admin Roberg on Tue, 14th Feb 2012 3:11 am
  1107. Sharon,
    Yes.

  1108. Admin Roberg on Tue, 14th Feb 2012 3:23 am
  1109. Hi Lii,
    You need that 8332. You probably need to talk to an attorney, the IRS won’t go by your decree. Sorry.

  1110. Admin Roberg on Tue, 14th Feb 2012 3:53 am
  1111. Hey Crystal,
    Your ex has your child for more time during the year. That gives him the right to claim your child for head of household and EIC. Depending upon your court documents, you may be entitled to claim your son at times for the dependency exemption and the child tax credit. But you don’t ever get EIC. Make sure you know exactly what you’re fighting for before you do battle, and if you’ve got a shot at winning. You probably need to read this: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

  1112. gabby on Tue, 14th Feb 2012 5:36 am
  1113. Hi. I have 9yr old son and full custody. I im guessing my ex claimed my son and like to know if in order for IRS to do an audit,the taxes HAVE to be filed by ME? My now husband claimed him and hes been living with us sincd he was 3! I dont ger child support.

  1114. ROCHELLE JOHNSON on Tue, 14th Feb 2012 5:44 am
  1115. i am 21 yrs old and i have 3 children ages 4,1,6mths. when i got my tax papers back she isnt on here. i thought because she was only born in august i wasnt able to claim her. is there any way i can find out wat happened with her information like did someone else claim her or what. please help!!!

  1116. Mira on Tue, 14th Feb 2012 7:52 pm
  1117. Hello, I have a 5yr old that has been living with me ( I live alone with him) since birth. I do not have a court ordered custody agreement, however I can easily prove that our child lives with me. His father as been paying a court ordered child support since our child was 9months & gets him every other weekend. I lost my job last year and has been reciveing unemployment compensation since then.

    Now I have some questions first, Can you claim a child on your taxes if your just claiming taxes from your unemployment? And will I qualify for an EIC?

    His dad said he wanted to claim our child, and i told him NO. Now if does claim our child before I get a chance to file my taxes first, what should I do? And can his father legally claim our child?

  1118. Taylor on Wed, 15th Feb 2012 8:33 pm
  1119. My husband and I have had joint custody of his Daughter since Jan 2010. The Mother has not had the child in her home or over night since Nov 2009. She has only seen her daughter 1 time in 1.5 years.

    Last year we filed our taxed and they were rejected. We filed them the paper way and we won.It took months but we got our money. I am wondering why nothing ever happened to the mother and why both my husband and the mother were paid. We never got anything in the mail about an audit. So this year the mother again claimed the daughter and we will have to file the paper way again. When will the mother get audited and what will happen. How can I make sure she has to pay the money back and be penalized. I don’t want to go through this every year.

    Also can we take the mother to court? It cost us alot of money to do our taxes and even more money to file paper.

  1120. David on Thu, 16th Feb 2012 1:56 am
  1121. Hello. I divorced in 2006, at which time I got custody of my son, and my ex-wife got custody of my daughter. The original divorce decree did state that I would claim my son on my taxes and she would claim my daughter. However, in 2008, my ex-wife gave up custodial rights of my daughter to me and moved out of state. An agreement was filed through the courts showing that I was now the primary custodial parent. Since then I have been claiming both children. That is, until this year. Last year when I was going through a move and changing jobs, my ex-wife moved back near myself and the kids (Kentucky). Since I had a lot going on and the kids were excited to see their mother, I agreed to let them stay with her for about 4 1/2 months. At the end of that time period, which we had agreed upon, the kids came back to live with me again, spending more than half the year in my household. My ex-wife then filed for custodial rights and was denied, and a new document was entered into the courts that states the children shall continue to reside with me as stated in the 2008 agreement. Now this year, she filed her taxes and claimed my daughter. She insists that the original divorce decree which states she gets to claim our daughter is still valid, even though I have custody, both physically and legally now. The updated documents that render me the custodial parent do not specify anything about filing taxes. Should I go ahead and claim my daughter as well and then leave it up to the IRS to audit and sort things out? I don’t think I should lose out, because my ex decided to show back up in my kids’ lives again.

  1122. Admin Roberg on Thu, 16th Feb 2012 10:39 pm
  1123. Hi Gabby,
    Because you’re married your new husband can claim your child even if you don’t file together.

  1124. Admin Roberg on Thu, 16th Feb 2012 10:49 pm
  1125. Hi Rochelle,
    If you haven’t e-filed already go ahead and e-file with your baby on the return. If you already filed your return without your baby you have to do amended return which is filed on paper so it really doesn’t matter if somebody else claimed your baby because you have to paper file the amended return anyway.

  1126. Jason on Thu, 16th Feb 2012 11:34 pm
  1127. I have a child out of wedlock with an ex girlfriend of mine from 2007. We have joint custody, however, she makes it quite difficult for me to see my son. Per our decree she is allowed to claim him for the even years and I am allowed to claim him for the odd years, so 2011 would be my year. This has gone very smoothly until now. She claims that since I was still behind in my support, as well as being in arrears, in the beginning of 2011 that I am ineligible to claim him for 2011 even though last years tax return eliminated my arrearages and I have been current on support since March or April of 2011. Also, I was able to claim him in 2009 when my arrearages were much greater, but she didn’t make a stink of it then. I consulted the District Court in my county as well as my attorney and both said, upon reading my decree, that I am eligible as long as I was current by the end of 2011. My ex E-filed first so my return was rejected. My wife and I needed the rest of our return, so we filed, claiming only the child that my wife and I have together, and without claiming my other son. I am 100% sure that I am in the right because of what the decree states, but I didn’t know if my ex would be able to slide through some loophole once the whole audit process begins. If I could afford it I would just pay my attorney and fight it that way, but I am unable to do so. Please let me know what you think. Thank you!

  1128. Shondra on Fri, 17th Feb 2012 12:31 am
  1129. Hi, I have a delima. I file my children every year, but this year I wanted my fiancee to file my daughter and I would file my son. I worked part time and I did not qualify for my full earned income credit. He tried to file and was rejected saying my daughter had already been filed. She was removed from my tax return so I did not file her and the biological father has never filed her. I had already filed prior to recieving this news. My fiancee filed and just removed my daughter. I now want to find out who has used my childs personal information. What can I do at this point?

  1130. Admin Roberg on Fri, 17th Feb 2012 1:25 am
  1131. Hey Jessie,
    I’m sorry, I missed your AGI post earlier. The thing about Adjusted Gross Income being used to determine who gets the child’s exemption is that it’s the very last issue. It’s all part of the “IRS Tie Breaker Rules”. They go like this:

    1. If two people both have a right to claim the child as a dependent (I’m talking about custodial rights, including head of household status and EIC)–then in the event of a tie–the person who is a parent wins. (For example, say a mom versus a grandmother–mom wins.)

    2. If both persons are parents of the child, then the parent who has lived with the child the longest amount of time wins. (For example, say mom and dad and child all live together for 8 months and in September, mom moves out leaving dad and child together. So although both parents have lived with the child for over 6 months and both people are parents of the child, Dad wins this case because he lived with the child for 12 months and the Mom only 8.

    3. The third and final tie-breaker is the AGI. For this example, Mom and Dad both live with the child for the whole year before Mom splits. Both are parents, both lived with the child an equal amount of time, so the tiebreaker here is the parent with the highest Adjusted Gross Income.

    Does that help?

    And one more thing. You mentioned going back to court and arranging alternate years for claiming you child being written into your paperwork. I think that’s smart. Let me add one piece of advice–when you do that, get your ex to sign the 8332′s now. Date them for the years you need them (because you’re doing every other year) but if you don’t have those signed 8332s, you could get burned again. A signed 8332 will be your proof that you can at least claim the exemption and child tax credit.

  1132. Admin Roberg on Fri, 17th Feb 2012 2:24 am
  1133. Hi Mira,
    You can still claim your child even if your income is only unemployment–it won’t qualify you for the Earned Income credit, but it still qualifies you for the head of household filing status, the exemption, and the child tax credit.
    Your husband can’t claim your child unless you sign an 8332 form to allow it. Even if you did allow it, he can’t claim EIC because he does not live with the child.
    If he goes ahead and files, claiming your son anyway (and you want to fight it) then you complete your tax return and mail it in.

  1134. Admin Roberg on Fri, 17th Feb 2012 3:01 am
  1135. Hey Taylor,
    How to make sure it doesn’t happen again? Change the laws. What I don’t understand is why you had to pay even more money to paper file? If this happens to my clients I just print the returns and we mail them. Where are you going that they gouge you for that?
    How to make sure she pays the IRS back? That’s not your problem. The IRS has these really nice, friendly people who send out little notices that if they don’t pay they seize their bank accounts and other cheerful stuff. You’ll never know because of privacy laws. The IRS can be a little slow at getting to this, but they do eventually get around to it.
    I don’t know about taking her to court. I’m not an attorney so I can’t make comments about legal issues.

  1136. Admin Roberg on Fri, 17th Feb 2012 3:11 am
  1137. Hi David,
    I would file and claim both kids. If your return is rejected, I’d go through the audit process, I feel you’ve got the right. If it does go to audit, be sure to have copies of the 2008 agreement to invalidate the copy of the 2006 agreement that she’s obviously going to use when she submites her documents. Good luck.

  1138. Admin Roberg on Fri, 17th Feb 2012 3:26 am
  1139. Admin Roberg on Fri, 17th Feb 2012 3:34 am
  1140. Hey Shondra–
    You really need to read this: http://robergtaxsolutions.com/2012/01/can-my-boyfriend-claim-my-child-by-a-different-father-on-his-tax-return-for-the-earned-income-credit/

    Bottom line–your fiance can’t claim your kid.

  1141. Michelle on Fri, 17th Feb 2012 2:41 pm
  1142. The judge ordered my 15 year old to a drug rehab for 6 months. Because his insurance is paying for it and it is provided through the state, I am having to pay the state child support. My question is since he is going to be out of my home for 6 months, can I still claim him on my taxes since I’m paying the child support that I am ordered to pay?

  1143. KEVIN on Fri, 17th Feb 2012 10:43 pm
  1144. My ex and our 2 daughters lived together until August 2011 and I paid all the bills because she didn’t have a job. She did not have a job until August but she did go to school part time for a few months at the beginning of the year. However I still paid all the bills for her and the kids. Since August we take turns keeping the girls over night but no custody agreement in writing. I pay about $900 in child support. I feel that I have the legal right to claim both kids this year since I provided for them more then half the year while they lived with me however she said that she has the right to claim them since she was the stay at home mom. I thought about letting her claim one and I claim the other but then my income was a little to high for the EIC plus I just feel like I have the legal right to claim both girls. She went ahead and filed her taxes before we came to an agreement and now I don’t know what to do. I’m about to mail mine in anyway and wait but wanted to know if you think it’s worth it for us to get audited. We lived in my dad’s house, which I paid him rent, until June then we rented another house for 2 months but I paid that as well. I also have utility bills and can get records of the adress that the girls lived at. I just don’t know if that’s enough. Can you give me any advise on what to do?

  1145. Bruce on Sat, 18th Feb 2012 4:30 am
  1146. Ok I used TurboTax like I do every year to file my taxes. Which I tried to file the day after my W2′s arrived (Feb. 3). My ex-wife and I have been divorced since 2005 and it clearly says in our decree that I get to claim him in odd years. Well when I sent my returns off, they were rejected. I called her up and she said that yes she had claimed him because she asked her preparer at H&R Block if she had claimed him last year and then since she the preparer told her that she had not claimed him she thought it was her year.

    Well she went back and talked to her preparer and she rechecked. Admitted that she had Claimed our son last year and that she couldn’t (or should I say shouldn’t) claim him this year. She (the preparer) said that they will amend the return AFTER the “peak” tax season is over. To me that means that towards the end of April or the beginning of May they will file and amended return, but I can’t and shouldn’t have to wait that long to file my taxes. I offered to let her pay me the difference and I would file without him, but she said no to that as he is worth more to me than he is to her.

    In September we had a change in physical custody from her to me, just to complicate the issue.

    She is not going to fight for the dependency. I think she gets the EIC this year (I’ll get it next). So should I just file a paper copy, attach a Form 8332 and/or a copy of the divorce decree and just send it all in? How will/should this play out? Am I going to have to wait until the end of the year (or several months) and fight to get my refund? Should I just let her pay me whatever he was worth to her and just live with it?

    We are on talking terms and get along ok for two people that really don’t like to be in the same room together. I was surprised that she had a question about if it was her year or not but didn’t call and ask me. It is not like I can lie about it, she can look it up if she wants.

    Thank You for any help you can give,
    Bruce

  1147. Taylor on Sat, 18th Feb 2012 5:32 am
  1148. Thanks for the great information. Do you know why last year year when we both claimed her there were never any audit papers sent to us. How can I make sure this year that she gets and audit?

  1149. Taylor on Sat, 18th Feb 2012 5:40 am
  1150. If my husband claims his daughter for the regular child deduction and the childs mother still claim for the EIC? (Remember she has not had even one day in 2011.) Since my husband will not file for EIC this year, will it still notice both parents are claims the child but for different things?

  1151. Misty on Sat, 18th Feb 2012 4:02 pm
  1152. Hi Jan,
    First off, I just wanna say i think you’re Awesome!
    I have a couple issues I was hoping you could help me with.
    My ex and I divorced in October 2009, like many others our papers state he can claim her every other year. What I didnt know until being on your site that I could have been claiming the EIC on her. She lives with me, he is suppose to get her 2 dys on the weekend (he does if he has nothing better to do) he doesnt pay child support other than maybe 2 or 3 times a year they alwasy seem to be in the amount of $75. This was his year to claim her again, which he did..but now that i know i should have been able to claim the EIC on her what do I do now? Can I go ahead and claim the EIC on her this year?

    Now on to my next issue, I am remarried as of August. My husband was divorced in 2002 it also states in his papers he is to claim his daughter evry other year, this year being his.He has 50/50 and we have her just as much as the mother if not more. We filled our taxes and recieved a phone call from our tax lady saying our refund was going to be 3,000 less than she had previously stated due to his ex claiming the daughter (this is not her year) so she told us we need to wait untill we recieve our refund then fill for an ammendment. We contacted the mother, of course she played dumb and then said she would not be given us anything. What do you recommend doing at this point?
    Again, thanks for all you do!

  1153. Eunice Barrios on Sat, 18th Feb 2012 11:25 pm
  1154. My brother is married with 2 children but in January 1, 2011 my sister-in-law decided she wanted to be free and left the home with his 10 year old leaving him and his 3 year old daughter behind. He lasted until September in the home they rented then he moved with my parents. This is where he still lives with my niece. His wife just recently a few months ago started to come pick her up Sunday, Monday evenings and Tuesday evening. That’s all the time she spends with her. Now my brother has no documents for his daughter, none! He has the right to claim for his daughters for he had her all year but she won’t provide him with no documents. How does he goes about getting a social security? How can he claim her on his taxes without one? Thanks!

  1155. Robert on Sun, 19th Feb 2012 2:49 am
  1156. My ex wife claimed my son in 2009 against the divorce decree which alternates between us the right to claim our son. I went through this ordeal and it did take a while but the Fed did allow my return and gave me my whole refund. The only problem is that she did it again for the 2011 tax year as well. She knows that she is in the wrong but does this anyway. I have to ask, how many times can she do this before the Fed will prevent it? Can she keep doing this?

  1157. abbie on Sun, 19th Feb 2012 3:58 am
  1158. My ex boyfriend claimed my daughter saying he was living with her in another state, IL but she lives with me IN I collect food stamps and medicaid in Indiana for her,myself…
    1 st he told me he would bring me the $300 we broke up and he got nasty saying He is going to have her name taken off his taxes and have them amended. then he is telling me he is going to turn me into the welfare office for fraud. I didnt sign any paper giving him my permission, I only asked him when in the form of a text message that when he gets the money to bring it to me.. can you tell me what can happen who will get in trouble ? if anyone

  1159. Admin Roberg on Sun, 19th Feb 2012 1:36 pm
  1160. Hi Michelle,
    Your son has been ordered to drug rehab for 6 months. I’m assumiing that your son normally lives with you and you normally claim him on your tax return. I’m also assuming that the full six months all were in the same tax year.
    The IRS considers temporary absences–live going to college, or camp, or being hospitalized as the child still living with the parent. So I think drug rehab counts as being hospitalized. So unless there’s some other issue I’m not aware of, I think you’re good to claim him.

  1161. Admin Roberg on Sun, 19th Feb 2012 1:36 pm
  1162. PS to Michelle–good luck to you and your son.

  1163. Scottie on Sun, 19th Feb 2012 2:45 pm
  1164. OK i have been divorced since 04 and have joint custody with her mom having primary. she has not went by the custody agreement since day one until the end of august this year i have had her 50% of the time.It states in our divorce court order that there is no child support and that I claim her in odd years and that she claims her in even years. She claimed her this year and she works for a accountant we are currently going back to court to modify our agreement but nothing has been changed by the court yet

  1165. Admin Roberg on Sun, 19th Feb 2012 7:43 pm
  1166. Hey Kevin,
    Let me say this back at you to make sure I understand correctly.
    1. You and your ex both lived together and with the children up through August– so you can honestly claim that you lived with them for over 6 months of the year. So you have a right to claim. But you have a tie-breaker situation.

    2. After you and your ex are both the legal parents of your kids so that does’t settle the issue.

    3. When you were apart, you and your ex alternated nights spent with the girls–so if you sat down and ran a calendar of nights–you would be exactly equal–so that doesn’t settle the issue.

    4. The final tie-breaker issue is Adjusted Gross Income–basically, who made the most money, which from the sound of things, I’m thinking is you.

    If I’m understanding your situation correctly, you would win your audit.

    But here’s my little non-tax advise–if you and your ex can settle this politely without involving the IRS, I think that’s the best for both of you. Do I think you’ll win? Yes. Do I think it will be a pain in the behind? Yes again.

    The fair thing in your case, (I think) would have been for you to each claim one child. (Remember, I’m not seeing the whole picture, I’m looking at it from your side of the alley. You ex may have a completely different story.) So, what would you gain by claiming one? What would you gain by claiming two? What does your ex lose? And most importantly — what;s the best solution for your children? Go back and take a look at the big picture and see what you really want out of the situation before you involve the IRS. That might be the right solution for you, but just make sure you ask yourself all the other questions before you proceed.

    Here’s to a mutually happy outcome for you and your family.

  1167. Admin Roberg on Sun, 19th Feb 2012 8:13 pm
  1168. Hi Bruce,
    So you used Turbo Tax and your wife used H&R Block but you’re writing to me for advice? You owe me a cup of Starbucks dude!

    Here goes anyway– My best advice is to have your ex sign the 8332 and let you send that in with your tax return. You’ll still have to paper file, but it will make things go much faster for you. Even if she amends her return today it will take weeks for it to process.

    Depending upon the location of the H&R Block office, most of their offices “peak” ends on February 28th. Some offices peak all season long, but generally, peak is over at the end of February. Now peak or no peak, if the preparer made the mistake, she should fix it immediately and take care of the client’s needs. A call to the district manager would settle that issue–(but then again, I’m not really sure that the Block preparer really made a mistake. If your wife always uses Block, their software maintains those records–it would be in the computer program when they bring it it up. I’m not sure you can call this a Block oopsie.)

    So, get the 8332 and file. If your ex gets a letter asking her to amend–well she’s going to amend anyway so no harm done.

  1169. Admin Roberg on Sun, 19th Feb 2012 8:33 pm
  1170. @Taylor–if the mother did not have the child for even one day this year she can’t claim EIC. EIC is only for the custodial parent, it is never for the non-custodial parent.

  1171. Admin Roberg on Sun, 19th Feb 2012 8:55 pm
  1172. Hi Misty,
    thanks. I appreciate the support.

    Now–first–your ex. Yes, since you have custody of your child, you have the right to claim EIC. You may go back and amend prior year returns to get it. (It may go into audit, but that’s okay, you’ve got the right and I’m guessing you can prove it to.)

    Now–for your current husband: Actually–first this isn’t about your current husband at all, it’s about your tax preparer–SHE CAN’T TO THAT! She can’t call you and say “your refund is going to be $3000 lower”. She must say, “someone filed a tax return with your child’s social security number on it. I can’t efile the return as it. What do you want me to do?” And maybe that’s what really did happen, but if she just went and took your child off the return without you coming back in and signing new paperwork–well that’s a sin in my world. (You know the top ten–well for a tax person, that’s number eleven!)

    Where was I? I got too worked up. Okay, so since you’ve already filed, it is best to wait for your refund before you file the amendment. But do file the amendment because you have the proper claim.

    Now–if your preparer e-filed your return without his child and without you both signing new paperwork–well that was bad. Really bad. Like channel two news kind of bad. (Our local news company does it’s investigative reporying on naughty companies.” If she did that and then tells you you have to pay extra to file an amended return–well that’s highway robbery.

    It’s one thing if you’re presented with options and you choose something–it’s another if they just pick for you.

    Good luck.

  1173. Admin Roberg on Sun, 19th Feb 2012 9:17 pm
  1174. Hi Eunice,
    You asked a really important question–how do you file a tax return without any documents on your children? Because, quite frankly–the IRS will have the hides of any tax preparer who files EIC tax returns claiming children where the parents don’t have the social security cards.

    Here’s my simple, answer: file it himself. Go online–see the file your own taxes link above and have him do it himself. He might not have the social security cards, but he’s got the numbers–he has to have the numbers somewhere.

  1175. Admin Roberg on Sun, 19th Feb 2012 9:20 pm
  1176. Robert–
    It seems like your ex can keep doing this indefinitely. I really want to pass a law called the Child Identity Protection Act–to protect people like you from dealing with this year after year. Eventually we’re going to get something passed.

  1177. Admin Roberg on Sun, 19th Feb 2012 9:26 pm
  1178. Abbie dear, what your ex-boyfriend is doing is fraud and if you let him pay you to lie for him that you’re committing fraud too. I don’t think that’s what you want to do.

    What is legal and okay for you to do is for you to sign a form 8332 to let him claim the dependency exemption and child tax credit. He may not claim EIC. That’s not fraud, that’s legal.

    Never let an ex boyfriend talk you into doing something illegal for money. There’s a reason he’s your ex-boyfriend–use your good judgment.

  1179. Admin Roberg on Sun, 19th Feb 2012 9:37 pm
  1180. Hey Scotty,
    so it sounds like you’ve got the right to claim your child for the dependency exemption and the child tax credit–not head of household or EIC. It also sounds like all you need is to copy the proper pages of your divorce decree to prove your case.
    Yours is a streamline case–paper file with the divorce decree pages attached. And good luck going back to court too.

  1181. Darin T. on Sun, 19th Feb 2012 11:29 pm
  1182. my ex has a new boyfriend and he states that he claims his child every year because he makes more money and then give his ex half of the childs savings that way every year they both get something. my ex makes more than me also does this make sense? our decree states that we alternate every other year and I have my daughter 19 days per month and her mom is the custodial parent… long story… hahaha

  1183. Misty on Sun, 19th Feb 2012 11:56 pm
  1184. Hi, its me again, I know she filled out taxes by e file. Not sure if she took my step daughter off. She just said it was rejected because his ex wife claimed his daughter. So does this mean se should be filling the paper work for us when we get out refund? And as far as my ex .. How do I go about going back and claiming my daughters EIC for 2009 and 2011. Should my tax lady do that or do I need to take care of it? Thanks again :)

  1185. Admin Roberg on Mon, 20th Feb 2012 1:18 am
  1186. Hey Misty,
    You can’t count on your preparer to just “do it for you”. You will always need to go in and sign stuff, make sure that the paperwork makes sense. So for this year–what you should do is paper file the return, then you won’t have to file an amendment. If your preparer already efiled, then you’ll need to file an amended return, claiming your husband’s child on there. If you don’t have your child on there for EIC, you need to put her on there too.

    As far as you going back and changing 2009, you can have your tax lady prepare the paperwor, but you’ll have to sign and mail it in. Good luck.

  1187. Admin Roberg on Mon, 20th Feb 2012 1:32 am
  1188. Hey Darin,
    Does the boyfriend have custody of his kids? I bet he doesn’t. So if he’s claiming them for EIC, then it’s tax fraud. Taking tax advice from someone who’s committing tax fraud is generally a bad idea.
    Now, you mentioned that you have custody of your daughter 19 days of every month–that makes you the custodial parent. (Let me check my math–30 – 19 = 11. 19 is bigger than 11 so you win the cusotdial parent argument.) At least for tax purposes, you are the parent that has the right to claim head of household and EIC.
    So–there’s no, “you ex letting you do it” you’ve got the right to begin with. Unless I’m really misunderstanding your case. You should always get the EIC and Head of household and every other year get the dependency exemption and child tax credit too.

    So what’s the new boyfriend trying to tell you? That your ex should allow you to claim EIC and that you give her half the refund? But sweetie, it’s your refund in the first place! It sounds to me like he’s trying to scam you into giving them money.

    You know, people who cheat the government are also likely to cheat they girlfriend’s ex. I wouldn’t trust this guy one bit. Now you may have other issues with your case–I’d go to one of the VITA offices and have them do your tax return for you for free. Cover your behind and make sure that everything you tell them is the 100% absolute truth so that you’re only claiming what you’re entitled to–but the way I’m reading it, you get the whole thing.

    And–if you do get the whole thing–then you do not give half of it to your ex and her new boyfriend. You take that money and you use it on your child, that’s what the money’s for. I’ve got a sneaking suspicion that you’re the kind of Dad that takes good care of his kid–don’t let some lying tax cheat keep you from doing that.

  1189. Ryan on Mon, 20th Feb 2012 6:23 pm
  1190. Hi. I have kinda a problem with the EIC and who can claim it. My Ex and I divorced in 2007 and the first year we were divorced she claimed both our boys. Then we went back to court and the Judge ordered that I could claim our oldest son on my taxes. About a year and a half ago or so we jointly entered into a agreement of division of time for our sons. I have our boys for about 190 to 210 nights per year. Last year I claimed my son for the EIC and as dependent with no problems. Now this year she decided to claim the EIC for her taxes and said it was because the lady who did he taxes said she could because she is the “custodial” parent even though I have both or sons for well over half the time of the year. I filed my taxes about a week ago and got the email rejecting them for the EIC already being claimed. Now what? if you have any advice or know of a situation like this I would be over the moon grateful…

  1191. Lizzet Olascuaga on Mon, 20th Feb 2012 6:33 pm
  1192. my ex boufriend claimed my daughter in 2010 and 2011 and didn’t give me nothing in 010 since we live with my mother she claims all of us as head of househould and they told her that my daughter was already claimed. I have prove form state court that I have custody of my daughter and how much he gives me for child support, but that doesn’t give him the right to file her. what should I do.. Go ahead and file her to see what the IRS says

  1193. KEVIN on Mon, 20th Feb 2012 6:51 pm
  1194. Thanks for the advice..
    I know we are 50/50 when it comes to who my 2 girls lived with during 2011 and I have the higher AGI however I’m concerned with the proof we will have to provide if we get audited. My oldest daughter didn’t start school until August and used our address we had together at that time however starting in December my daughter uses my ex’s address so she will have that on me. As for medical bills our 2 daughters were fully covered by medicaid. I don’t really have proof that they stay with me at my house even tough she and I both know they do. I’m so mad that she just went ahead and claimed our youngest child even though she told me she would allow me to claim both of them because she knows I supported all of them. If I only claim my one child then I don’t qualify for EIC because my income is over the $36000 limit, I’d only qualify if I claim both kids. I don’t care if I have to wait a long time being audited and just hope I have good enough proof to win but I have a bigger concern when it comes to being audited.. The past few years we filed jointly married because her mother told us to when she did our taxes for us however we are NOT married. Because of that I don’t even know what filing status I should use this year. She is telling me to file as divorced, I think I should file head of household but I don’t know and I just don’t want to dig myself into a bigger hole. My ex went ahead and filed divorced and claim one of our 2 daughters but again we were never married so of course we were never divorced either. I’m getting over $2000 less if I only claim one child, is it worth it for me to mail in tax return claiming both and get audited??

  1195. George G on Mon, 20th Feb 2012 9:36 pm
  1196. Hello

    I have a somewhat compex situation, well at least to me. My ex fiance and I both lived together the entire year of 2011, we have a Son together.

    I made approx 29k annually last year, she made around 12k. I claimed my Son for the EIC as well as head of Household, I paid the majority of everything (food/rent/bills etc).

    She is now stating that she is going to go try to claim our Son.

    So in short, My Son, my EX and I all 3 lived together for all of 2011, who has the right to claim him?

    Ty for your assistance

  1197. Amira on Tue, 21st Feb 2012 2:27 am
  1198. Hi – its me again. Quick recap: DH and I were caretakers of niece, niece’s mom wasn’t living with us or providing any help. Niece lived with us 8 months. Niece’s mom filed my niece on her taxes. We filed niece on our taxes. Our taxes were denied electronically due to the fact that our niece had already been claimed by someone. So, we filed our claim by mail since it was denied electronically. Now we’ve been waiting for the letter to come which asks “Are you sure you really meant to file this child as a dependent?”. Then, this morning my husband checks the bank account and he just keeps saying “This is wrong – something’s wrong, I don’t understand, this can’t be right, etc”. I’m panicking because that’s what you do when someone says something’s wrong with the bank account. He finally gets it out -we’ve got a substantial deposit in our account that wasn’t there before. We call the bank because there’s no way this is right. Guess what? The IRS sent us our refund. So – should I be worried? Did the IRS make a mistake? Are they going to call us any day now and tell us: “Ooops, we didn’t mean to send you that money. You need to give it back ASAP.” We could use the money, but I’m almost afraid to touch it. Any advice on this?

  1199. Admin Roberg on Tue, 21st Feb 2012 2:45 am
  1200. Hey Ryan,
    You wonder if I’ve ever known anyone with a problem like yours? You’re kidding right? This post has had over 16,000 views in the past 30 days. The one thing I can absolutely assure you of is that you are not alone! Nobody’s coming to look at this if everything is perfect on their taxes–that’s the one thing everybody here has in common–an ex claiming their kid.
    So what can you do? Well for one thing–you are the custodial parent–that I’m pretty sure of. (I’m guessing your ex lied to her preparer, it’s not unheard of.)

    My advice is to print out your tax return and mail it in. Be prepared for the audit like I wrote about above. It will take time, but if you get your proof together now, you should be okay.

  1201. Admin Roberg on Tue, 21st Feb 2012 2:49 am
  1202. Hey Lizzet,
    You’ve pretty much got the right idea. Have your mom paper file and go from there. Your ex does not have custody so he can’t claim EIC. I don’t know about the dependency exemption –if he can claim that or not–but he cannot for sure have EIC.

  1203. Admin Roberg on Tue, 21st Feb 2012 2:53 am
  1204. Hi George–
    You’re dealing with the IRS tie breaker rules for claiming your child. You’re both parents (tie-breaker one), you both lived with the child for the same amount of time (tie-breaker two), but you had the higher adjusted gross income–therefore you win tie-breaker number three. The deductions are yours.

  1205. Admin Roberg on Tue, 21st Feb 2012 3:03 am
  1206. Hey there Amira,
    I’m really trying to resist the urge to say “Take the money and run!” That’s not horribly adult now is it?
    Anyway, I’m guessing you’re good here–but just to be safe–it’s worth making a phone call to the IRS and just following up–

    “Hi, my name is Amira ______, I recently received my refund but I wanted to check to make sure my account is in the clear because my tax return had been rejected before. Is the issue resolved?”

    I remember you writing before–you do have the legitimate claim so you’d win the audit anyway (in my opinion.) So I’m not horribly concerned that you’ll lose.

    If the IRS doesn’t satisfy your curiousity when you call, just put the majority of the money into a savings account. Spend what you need to spend though–this is your money, but hold off on the Disney trip or whatever, just in case. (I know, like you were going to Disney World with it, but you know what I mean.)

    Be happy! :)

  1207. George G on Tue, 21st Feb 2012 3:27 am
  1208. Thank you very much for your prompt answer

  1209. Maggie on Tue, 21st Feb 2012 5:57 pm
  1210. I have a question…..my ex and I have been separated for the last 4 years, I live in NY now and he still lives in PA in the house we once shared. In all fairness he pays the mortgage on the house and has always claimed the house in his taxes. We have never filed taxes together even when we were together. I claim my daughter as my dependent as she lives with me full time. The thing now is to be able to do things on his own and still be able to help out with my daughter he took on a second job which has been helpful. He does help me out with my daughter school and child care while I am at work and I go to school as well. because of his two incomes now he doesn not get much of a refund now. The question we both have is we do out taxes thru Turbo tax, is he able to put on his taxes the money he puts out for my daughter’s after-school care as well as medical coverage without getting into any trouble because I claim her on my taxes as my dependent. he files head of household I believe since he takes care of all the expenses on his house (mortgage, property tax, school tax, utility bills etc.) but currently has no dependents. I also file head of household ( I live separately from him ) neither one of us qualify for the EIC but I do get a child credit as well as what I pay for summer day camp and baby sitting and my educational expense. Is there a way where he can put the expenses he participates in regards to my daughters child care needs? He really is doing the best he can and does help me out with her unlike some of the stories I hear on this site and even went as far as getting a second job to do so since he knows of my additional expenses with my going back to school and taking care of my daughter. I feel bad because of taking on this second job to help him economically he is not getting back much on his returns even with claiming the house which in the past helped him out a great deal but since he is making more money now it almost has gone un noticed. What can be done in respects to his assistance in the support of my daughter and his filing? without either of us jeopardizing the other?

  1211. Liz on Tue, 21st Feb 2012 6:11 pm
  1212. I just wanted to say a a quick thank you for the information and your time, I appreciate it greatly.

    Thank you!

  1213. Missy on Wed, 22nd Feb 2012 3:37 pm
  1214. My daughter’s father has barley worked in 5 years. I didn’t even know he took a job with a temp agency this summer so he could get a w2 to file taxes. My daughter lives with me and goes to school in my town. She visits her father from after school on Friday – Noon on Sunday and last summer the agreement was for her to see her dad from Thursdays at 12pm to Sundays @ 12pm. I filed my taxes on Feb 5th and they were rejected. After saying he didn’t claim her, I finally got the truth out of him and he DID claim her!! I contacted the IRS and they said I needed to fill out a 3949A and send it in. I don’t even receive child support from him. I work 2 jobs to keep a roof over our heads and food on our table. What are my chances that he will be punished and have to return the $3500 he recieved from claiming her? Thank you for any assistance/advice!

  1215. Miranda Dankert on Wed, 22nd Feb 2012 7:30 pm
  1216. My husband nd his ex wife have a daughter, she isnow 20 and a full time college student. He has always had full custody of her since she was 2. This year we tried to file our taxes and they were rejected because his ex wife claimed her on her taxes. Is there anything we can do? Is she allowed to claim her now after 18 years of not having custody or rights?

  1217. Lorie on Wed, 22nd Feb 2012 9:04 pm
  1218. I’m not sure if your still answering any questions on here but I’m crossing my fingers! This year I tried to e-file and my tax return was rejected because my ex claimed my son, he never lived with him but we do share joint custody and for some reason the judge said the he could claim him until i make $10,000 or more. However, I am not able to work full-time because I do attend school full-time and have a part-time job. I am going to send in my tax return because I don’t think it’s fair that he gets to claim him, my son lives with me the entire year and he doesn’t really do anything for him. My ex only pays about $172 a month for child support and other than that doesn’t really have any responsibilites with him. Do I have a strong case with the irs or am I going to have to get a lawyer? Hope to hear from you soon!

    p.s I need to claim him because I receive financial aid for school and would not be able to pay for it other wise! Hope that helps

  1219. Admin Roberg on Thu, 23rd Feb 2012 3:40 am
  1220. Maggie, I’m sorry but your ex can’t claim head of household. It sounds to me like you’re still married–that makes him “married filing separate” and that is the worst tax status possible.

    Here are two options–
    1. Since you’re still married, file jointly–he’ll get a lower tax bracket and you’ll benefit from all the related child credits. (This will help him–not really help you.)

    2. Split the exemption–you claim the head of household (no EIC because your income is too hig) and let him claim the dependency exemption and the child tax credit. He can’t claim the child care credit–that goes to the head of household which is you.

    Since you’re using Turbo Tax, you can call up one of their tax specialists and she can talk you through all the different options and make sure that you’re doing everything legally. Good luck.

    PS: congratulations on having one of the “good” exes. They do exist, and it’s nice to see parents working together.

  1221. Maggie on Thu, 23rd Feb 2012 4:18 am
  1222. Hi! When we did the child support process they told me I was the custodial parent, & the father had the right to visitations.. I am somewhat confused because they never told me who had the right to claim the child, and my baby’s father said one year me & the other him. I’m mad right now because I just started to investigate about that & I think im the only one who can claim my baby since he only pays $30/wk & only sees her every other weekend, but he claimed her this year.. I’m not doing my taxes this year because i barely worked, but i dont know what to do so he doesnt keep doing it, & how do i let him know he had no right to claim her. Also, can i take legal accion about it? Someone said I can change my baby’s name on her birth certificate & SSN so if he tries again it wont let him, but i dont know if i still need his permission to change it anyways, since he’s paying child support.

  1223. Chip Foose on Thu, 23rd Feb 2012 4:55 pm
  1224. What if you have an agreement on the divorce saying that you get to claim the child? Also can you switch claiming kids every year even if the kids didn’t live with you? I pay a lot of child support so it would be nice to get some money back at the end of the year. Maybe wishful thinking, but it would be nice!

  1225. Chip Foose on Thu, 23rd Feb 2012 4:59 pm
  1226. Sorry, but I remembered one last question…My ex agreed on the divorce that I can claim my son and because of that I have my W-2 form set up like I have a dependent. So when she goes behind my back and claims my son then I get stuck paying the IRS back taxes. Money I don’t have. Any Idea how I can protect myself from getting the ugly end of the stick? My ex is not the easiest when it comes to negotiating or coming up with a peaceful solution. Thanks in advance!

  1227. Chip Foose on Thu, 23rd Feb 2012 5:31 pm
  1228. Again, I apologize for all the posting, but I also wanted to point out that she is unemployed as well and I have the higher adjusted gross. She has also gone behind my back when we were married and got my W-2 forms through my employers website on two different occasions and filed taxes without my consent and kept all the money. It has been a few years since then. The reason I didn’t report her to IRS is because I didn’t want her to go to jail and fear of what my kids would have though of me. However, now she continues to go behind my back and it feels like she is constantly stealing from me. Should I still report her to the IRS even though its been a few years? Again thanks in advance!

  1229. colette burrell on Fri, 24th Feb 2012 2:04 am
  1230. I have 2 children with my ex and I have been seperated since Jan 2010 and were force to claim marriedfiling jointly as to get as much of a return as possible for that year.when I filed for divorce in 2010 (which was defaulted because he didnt care to do the paperwork) I got sole physical custody and joint legal custodybut gave him 43% visitations. I was told by a family law Facilitator that if I fild for child support I would have to pay him 43 bucks a month for child support, but could claim both of my kids since I still have them more; if i let him claim one child he would have to pay me an est. of 29 bucks a month… in my mind I didnt see a benefit if I opened a case He helped out with buying them clothes and neccesities for school,so I didnt, while we were seperated I applied for foodstamps where I live and qualified .The the next year I claimed both children because I have them most of the time. He got mad and said I didnt have a right since we pretty much have them 50/50… I just told him that since he doesnt pay childsupport he cant, but this year he went behind my back and claimed my daugter anyway. I have already called and left messages to tlk about it and he wont return any of my calls. I have already sent my taxes in by mail and waiting for a letter back, but my question is even though I am the custodial parent is there a chance that he will do this next year except with my son? Is there anytthing I can do to prevent that? or just wait for the next year and do it all over again.

  1231. Admin Roberg on Fri, 24th Feb 2012 2:16 am
  1232. Hey Missy,
    the important question is will you get your rightful refund? And I think the answer is yes. Everything else is irrelevant. I know, it doesn’t seem that way, but you’ll never be told what happens with your ex (unless he tells you–and who knows if he’ll tell you the truth.)
    Here’s what I’m concerned about–did they tell you to mail in your tax return? That’s what you really need to do. The 3949A is just reporting him for fraud, which is okay–but you won’t get what’s yours without filing your 1040. So, if nothing else, you must file a 1040 tax return to claim your daughter. Mail it to the IRS, that will get you more action (in my opinion) than the 3949A. If nothing else, the 1040 is the only way to get your refund.

  1233. Admin Roberg on Fri, 24th Feb 2012 2:22 am
  1234. Hi Miranda,
    I don’t know of any law that lets you claim a kid that you haven’t had custody of for 18 years. The only possible reason I can think of is if she’s paying the girl’s tuition. (There’s a different post where a family made an agreement because of free tuition–that made lots of sense.) But other than something like that–I think you need to paper file your return and claim your step-daughter.

  1235. Admin Roberg on Fri, 24th Feb 2012 2:33 am
  1236. Hi Lorie,
    I’m still here I’m just kind of tied up with tax returns right now. Sorry this is a little slow.
    Anyway this is what you need to know: You are the custodial parent. Your child lives with you. That’s important to know.
    When the court granted your ex the right to claim your child on his tax return, they only granted him the right to claim the exemption and the child tax credit–that’s kind of like his little prize for paying child support.
    You, Lorie, as the custodial parent–you keep the right to claim the head of household filing status and the earned income tax credit. (I find that claiming head of household helps with the financial aid department of many schools.)
    You’re in a situation where you “split” the exemption. Here’s information about how to do that legally: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    Hope that helps. You don’t need a lawyer for this–your case is good in IRS eyes.

  1237. justine barela on Fri, 24th Feb 2012 6:23 am
  1238. hello, so my exboyfriend’s girlfriend claimed two of my children in 2011 and well there saying the irs did not give them the money.. they are also sayin that the irs has asked for certain paper work and if they have enough prove then theyll recive payment in 2011.. but is there anyway of me finding out if they recived it? because they did not take care of my children ever..

  1239. Kasey Baker on Fri, 24th Feb 2012 4:26 pm
  1240. My exhusband told my 16 year old last year that he didn’t want for him to live with him (we have joint custody), he didn’t ask me if that wasy okay, but of course i was going to take him.

    Since I had my son more than six months last year I took the deduction this year for him even though our divorce decree says we are suppose to rotate years and it was my exes year to use the deduction. I supported our child more than six months – shouldn’t i be entitled to that deduction according to IRS law?

  1241. Admin Roberg on Fri, 24th Feb 2012 10:00 pm
  1242. Hi Maggie,
    If you don’t file a tax return you’re not really being harmed so I’m not positive on why you’re upset at your ex for claiming your child. But if you were filing taxes you’re the custodial parent you can claim head of household and also you can claim EIC. You’re ex can only claim an exemption and the child tax credit if you allow him but if you’re not filing a tax return there’s no harm no foul so preventing something from happening in the future date you don’t know if you’re going to do that or not it’s not making a lot of sense right now I would just let it go.

  1243. Aaron on Fri, 24th Feb 2012 10:08 pm
  1244. Hey Jan Roberg! I NOW have 50% legal and physical custody of my son. Well, last year I had 45% for 4 months and the remaining 8 months I had 50% custody. So technically she only had him about 6 days longer than I did. BUT, I used my vacation with him last year and she didn’t (13 days) and I had him on my birthday and she didn’t (1 day). Also, I babysat SEVERAL times for her and she has her mom watch him ALOT while she is at work and when she goes out with her friends (she is a party girl). My question is, Can I claim him? I technically had him more than she did, all I have to prove it is a copy of my itinerary that I gave her for the vacation that I had with him. It just explains in full detail of where we will be, phone numbers and the time I have him till the time he goes back to his mom. OH YEAH, she also went to vegas for a week too and I had him that whole week. The only way I can prove that is she posted on her Facebook that she was going to Vegas for a week. Hmm, maybe I can print that or something. Anyways, can you give me some information on this? Can I claim him even though she had him more than me “on paper”? I’m the one that pays for his pre-school, I’m the one that paid for his dental surgery and I’m the one that provides his health insurance and life insurance.

    Thanks for your time! I’ll check back periodically to see if you responded! THANKS!!!!

    Aaron Hill.

  1245. Eric B on Sat, 25th Feb 2012 3:09 am
  1246. Hello,
    This ones been difficult for me me to deal with. I recently ended the engagement between my soon to be wife Alexandra. We have two girls, ages 2 and 4 months old. We broke up on the 7th of January 2012. We lived together all of 2011 she has never worked a day in her life, while I worked 2 jobs 60 plus hours a week. We moved three times last year due to her not getting along with neighbors. We lived at the three locations for about four months each, all in same state. I paid the rent the utilities, diapers wipes, pretty much everything. We moved into her Grandparents house in Septmeber 2011, I paid him rent for the upstairs portion of the house, we didnt have a lease or anything he ask that on every Friday I pay him a set amount. I still paid for all the food and everything, My Second daughter was born a month later in Mid October, I filled out partnity form with Alexandra to state i am the father, she never turned it in, so im not on her birth certiicate, but i am her father for sure. Long story short I was fighting with Alex alot and decided to move into my own place because I didnt like fight ing in front on the kids. I moved out the 14th of January 2012. I continued to pay her rent until she pulled a bogus restaining order out on me to get custody of the kids because she knew she feared that i was seeking full custody which I am. This blew up into a huge fight between me and her grandparents because after she pulled the temporary restraining order on me I stop paying Paul his weekly rent even through I wasnt living there, she wanted to not be with me and Alex wanted to do it on her own. I asked if I could have the Socials for the girls because I had to file my taxes since the girls lived with us all of 2011 and we didnt separate until 2012 i believe I’m entitle to claim them, but heres what happened she demanded she get all the tax return because she watched them while I was at work. I told her no, and that I would make sure the girls had money set away for there future and take care of some students loans I had, and buy a car. So she told her Grandpa Paul that i wasnt going to give her any money from my taxes which is almost a 9,000 dollars return I was expecting. So Paul and his wife quickly efiled there taxes claiming my girls while I had the temporary restraining order on me. The restraing order was dropped on the 7th of Febuary and order her to seek counsling for depression and that we split the kids 50/ 50 but i ll have to pay her child support since i make the money which i have no problem been paying for everything every since we met. So i finally get the Socials for my girls and efile my taxes on turbo tax, to find out my claim has been rejected. I tried calling a Paul to straighten things out and even went over to his house to talk to him after the 7th of Febuary to find out why he wanted to claim my girls, and he told me to file my taxes anyway and let the irs handle it. What are my chances and what kinda of proof should i get ready as I am mailing in my hard copy of my return with girls as my dependants tomorrow and, is what Paul and Diane illegal? i am a hard working single father now, and this is really stressful and tips or advice would be helpful.

    Thanks
    Eric B.
    Tacoma Wa

  1247. Sasha on Sat, 25th Feb 2012 7:31 pm
  1248. I think my ex claimed my child if it was him will he get arrested for identity theft?

  1249. Admin Roberg on Sat, 25th Feb 2012 11:14 pm
  1250. Hey Colette,
    As the rules stand now–there’s no way to prevent someone from filing a claim on your kids. You’re doing the right thing be filing a paper return and getting the process started. Do keep good records of how often the kids are at your house–that’s going to be important. I have a sneaking suspicion that you’re going to have to deal with this issue again. Sorry.

  1251. Admin Roberg on Sat, 25th Feb 2012 11:19 pm
  1252. Hey Justine,
    Here’s the thing–you will never know if they received the money or not because of IRS confidentiality laws. But here’s something you should know: it’s illegal for your ex’s girlfriend to claim your kids! Here’s a link for you: http://www.flickr.com/photos/emileedavis/3508465015/
    Just replace “boyfriend” with “girlfriend” and you’ve got the picture.

    Now–what you need to do is to go and claim your children on your own return. They’re yours. They live with you. Right? You claim them.

  1253. Admin Roberg on Sat, 25th Feb 2012 11:40 pm
  1254. Hi Casey,
    Because you’ve got custody–you are entitled to claim head of household (and if you qualify EIC.) Your decree gives your ex the right to claim the exemption and the child tax credit. So you do get some benefit to being the custodial parent even if lose the exemption because of the decree.

    You might want to check out the post of Court Ordered exemptions, just in case: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
    Good luck.

  1255. Admin Roberg on Sat, 25th Feb 2012 11:53 pm
  1256. Hi Aaron,
    I hate to say this, but, I don’t know. It sounds like you’ve got a case–the issue is–can you win or not. It seems to me that you could pull together enough proof for your case so it’s probably worth a shot.
    But–let me fly this by you just for fun–okay maybe not fun but just for thinking.

    How well do you and your ex get along? Could the two of your work together on this? Maybe see what’s best for everyone? It seems like you both have 50/50 custody–maybe splitting an exemption might be a good solution for you two. See this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/comment-page-1/#comment-5500

    I’m just concerned that playing “Aha” with the ex might be harmful to your child. Maybe you’re not doing that, but I just wanted to put that warning out there. You mentioned that she was a “party girl” so maybe she’s not going to be responsible about using the tax refund for your child–so I can see that as an issue too.

    Anyway–I think you have a case–not sure if it’s winnable but I suspect you’ve been working on this and getting your ducks in a row (I need another euphemism) so you’re probably ahead of the game with that part. Personally, I’d recommend the split exemption route–but if she’s going to fight you on that–then I’d pursue paper filing. Worst case scenarior–the IRS says no. It’s not like you’re filing a fraud case–you’ve got a decent claim. (Note–if the IRS deems you to have exactly 50% of the time spent with your child–then the winner will be the one with the higher adjusted gross income.)

  1257. Admin Roberg on Sun, 26th Feb 2012 3:16 am
  1258. Hi Eric,
    It does sound like you’ve got a tough situation. Here’s some things you need to know.
    Since you were not married, you will be able to claim head of household for your filing status.
    Since your ex earned no income, she doesn’t have anything to claim.
    Since the children only lived in the grandparents’ home since September–the grandparents do not have a right to claim them.
    Taxwise–you’ve got the winning case.
    Going through a break up is difficult and when you’ve got children involved it’s heartbreaking. But you do have the higher legal claim on your taxes and you should go ahead and paper file–it’s your right. Good luck.

  1259. Joyce on Sun, 26th Feb 2012 3:39 am
  1260. Hi Jan,

    I am so aggravated right now, I can’t stand it! I have been divorced since 2000. I have 2 sons and they are now 19 & 21, they have always lived with me, I am the custodial parent. My ex has claimed my younger son for the last 10 years since the divorce decree stated that he can claim one child and I can claim one. It does not specify which one but he took it upon himself to claim our younger son. I told him back in June of 2011 via letter that I am claiming both kids this year since I provide well over their 50% support. He pays $154 per week for both kids (barely enough to feed them). They are both in college and guess who foots the bill solo for any expenses that are not covered by grants and loans. I pay all of their medical expenses and dental and vision insurance also.
    He went ahead and claimed my younger son again this year. I am going to mail the return in because I have saved every receipt this year knowing he would still claim him. I even have every grocery receipt from this past year, all the clothing receipts and I have my cancelled checks showing I paid $14,000in tuition for the last two semesters.
    I shouldn’t have to worry about this, right? If I prove my case this year, will that bump him from claiming him for subsequent years?

    I don’t understand how you feel that you support your child for $77 per week and that should pay for college and everything else they need!

  1261. Admin Roberg on Sun, 26th Feb 2012 3:51 am
  1262. Hi Sasha,
    You ex will not be arrested for identity theft. The only way he’ll suffer is if you file a tax return claiming your child for yourself.

  1263. Laura Downing on Sun, 26th Feb 2012 6:19 pm
  1264. my daughter has a 4 yr old and not married to the father- they were given joint custody- but the 4 yr old lives w/mom- father gets visitation everyother weekend, 2 weeks in summer. only paid support for ten months @50 $ a week- can he claim her totally, head of house hold etc…. i remember a co. said who ever files first is this the truth ?

  1265. Admin Roberg on Mon, 27th Feb 2012 2:01 am
  1266. Hey Joyce,
    As a parents that’s also paying college tuition, I really wish $77 a week would do the trick. Yes–definitely paper file your return. Now, you’ll want to check out about court ordered exemptions–http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
    As he may have some right to claim your son- so dot your i’s and cross your t’s to make sure you’ve got the winning case.

    You really want to be able to claim the exemption because the person claiming the dependency exemption is also the one who gets to claim the education tax credit–and that can be worth up to $2500 for you. As the parent that pays the tuition–you really want that exemption.

    Good luck. I’m pulling for you on this one, I feel your pain of the tuition payment.

  1267. Admin Roberg on Mon, 27th Feb 2012 2:23 am
  1268. Hey Laura,
    Just because someone files first doesn’t mean that he has the right to claim a child on his tax return. It sounds like your daughter is the custodial parent and has the right to claim her child. If her ex filed first–it messes up her refund, but she can fight back by filing a paper return.

  1269. Candiss on Mon, 27th Feb 2012 2:44 am
  1270. My daughter wil be 17 this year in 2012, She has lived with me her whole life, but reently went to live with her father who is not ordered to claim our daughter on his taxes, He has not filed his own taxes in 3 to 4 years, because irs, send it to me for back child support that he owes. I filed my taxes as always , but receive an email from my tax ppl, stating that my child has already been cliamed. The father just recently remarried and the new wife claimed our daughter, my question is, in 2010 my daughter lived with them from late oct till the following year 2011, jan, feb, arch ,april may, and 2 weeks in June and has been living ith me since. The father and his new wife had only been married 2 months, then 2 months later my child moves back home to live with me . He has tried to make me pay him for the month she has staied with him, I did write a letter in Oct, 2010 that it would be best if my daughter lives with him to finish out the school year. But once school was out she returned home. My question is , how can new wife claim my daughter if they were only married 2 months and does she have this right to do so. There is set summer vacation times ordered, Father wants to be paid for summe and holidays. How can I fix this matter. I did file my taxes and will file any forms need to correct this. I just need toknow how the new wife can do this, did she file them bothas dependants, ?
    Please any thing you can advise me is greatly needed.
    My daughter has only lived with her father 24 months out of 16 yrs. he was order to pay child and medical support, and is in arreages over 20,000 maybe more now with interest, please help.
    hopeless,
    Candiss

  1271. nicole carver on Mon, 27th Feb 2012 7:37 pm
  1272. Hi Laura,

    My ex and i has been divorced since Aug. 2010 it would have been sooner but he was in prison. I tried to file my return but it was rejected. My ex claimed our two children with his girlfriend but they filed married jointly. He said first come first serve. I am waiting for the audit papers to come in so that I can fill them out. Reading your post I am pretty sure that I am in the right and I will win. But my ex says that my new husband can not claim our children because they are not his.Is he right? My new husband and I filed married jointly. My ex and I have joint custody but the children primary resident is mine and the father’s is secondary.My ex lives 43 miles one way from my home and our oldest child school. My ex refuses to pay child support. He far behind, I just got a check 2 weeks ago from child-support.My ex says that all he has to do is show proof that he buys things for our children such clothes and shoes and food and etc. that’s his proof that he supports the children. Is my case still a win?My ex said that if I fight him on this, he will tell the IRS that my mother falsely claimed our children the past 3 years. I lived with my mother and didn’t work. My mother had provided support for our two children hence while the father was in prison. We lived in her home rent free and etc. In return I allowed her to claim the children in repaying her to allow us to stay there. Can he do that? Will my mother get into trouble? We have always been honest when filing our taxes.
    I moved out in Nov. 2010. But the children have lived with me their whole entire lives including 2011. I have filed form 3949 A. in regards to my ex. Will this speed things up a little. I sent my papers for taxes on the 13th of Feb. From your post I gathered that I won’t see my money until June. Right?
    Also, what will happened to my ex and his girlfriend?

  1273. Admin Roberg on Tue, 28th Feb 2012 3:06 am
  1274. Hey Candiss,
    What the IRS will look at is not the past 16 years–but what happened in 2011. So let’s start there.
    First- it doesn’t matter how long your ex and his wife were married–since they were married–she is the step mother and if they filed a joint return then your daughter can be claimed by her.

    Second–the next part is to determine how long your daughter stayed at your ex’s home. You list January, February, March, April, May, and two weeks in June–not quite six months–but if she spent summer vacation or two other weeks worth of time there–then they do have a legitimate claim.

    It’s time for you to get out the calendar and really check how much time you had her for. And–if you can prove it. One of the big proofs is the school records–and it sounds like they’re going to have that.

    I’m sorry because I don’t have any good news for you here. (Of course I think he’s a XXXX-head for trying to get you to pay him for taking care of his own daughter for a month, but that doesn’t really help you.)

    If you count out the days, and you’ve got a case, then you can paper file your return–but from what you’re telling me, I’m thinking you might not have the calendar on your side. Sorry.

  1275. Admin Roberg on Tue, 28th Feb 2012 3:23 am
  1276. Hey Nicole,
    I don’t think you’ve done anything wrong. And I don’t think your Mom has done anything wrong. I think your ex is being a bully and trying to scare you. That–on the other hand is wrong.

    1. You new husband is the step father of your children. He has every right to claim them on your tax return. Even if you and your current husband get a divorce–he will still have a legal claim to the children. Your ex is just jealous.

    2. You mother–while she was supporting you and the kids, had every right to claim the kids when she did. No problem there.

    I honestly don’t know what will happen to your ex and his girlfriend. And quite frankly, I don’t care. You’re the only one that matters in my opinion and you’ll do just fine.

  1277. Joseph on Tue, 28th Feb 2012 6:21 pm
  1278. I have been divorced since 2006. When my ex and I got divorced she had kids. 2008 we went back to court and i was awarded custody and have had them since. in divorce decree it says she can claim our daughter but in new custody order it was not. for 4 years she still keeps claiming our daughter and said she can. every year our return is sent back because she claims her. My wife now spoke to our tax lady and she said we can file an amended return but wants us to wait until end of tax season. Do I have a chance of winning? How far back can I file? My ex has not had a job so I think she had someone file our daughter as a dependent is that right??? Please let me know what I need to do. My ex does not pay anything and only choose to see kids a month and a half out of the year during the summer!! I asked her to stop and she just keeps talking about karma and laughs at my wife and I. My wife and I agree enough is enough.

  1279. geritza jimenez on Tue, 28th Feb 2012 9:25 pm
  1280. hi my babyfather went to do his income tax and they lady that did the taxes call him that same day to tell him that our 3 yr daughter was claim …how can we find out whos claiming our daughter?

  1281. Gabriel on Tue, 28th Feb 2012 11:21 pm
  1282. My ex wife claims one of my children every year. I have primary custody and live in California she lives in Texas. Prior to her moving she lived in California and we had 50 50 custody and the court order said we would switch every year, she would claim 51 % and I 49% for Tax purposes. I have a new court order where I have the children and they live with me in California. she still claims one of the children every year. This has been going on now for 6 years and I don’t understand why the IRS lets her get away from this. I can never file my taxes electronically I allways hae to mail them in. Her reason for doing this is that she still has the old court order and she is sticking to it. Please advise.

  1283. Tina Way on Wed, 29th Feb 2012 3:10 pm
  1284. As of May 2011 my step duaghter moved in with us ful-ltime. Her dad became the custodial parent and the mother became the non-custodial parent. We have court papers stating this. It also states father shall claim EIC for child starting for tax year 2011 and both mother and father shall claim child as a dependent, father having odd # years and mother on even.
    We had our taxes done and sent them off to be e-filed by our tax guy. We received a call the next day letting us know that our tax form for Federal have been rejected to due the fact my step daughter had been claimed and now we would have to fill out papers and sent in copies of our court papers proving we are the ones who can claim her. My husband called the mother and asked her about it and let her know that he has to send in papers and now this is holding his up because now he is unable to e-file it back he has to mail it in. She could care less, she already had her money and was spending in on her hair, clothes, new cell phone, family vacation. She told my husband it was not her problem.
    We sent the papers in certified mail and surprisingly it only took 4 weeks from the time the IRS receieved them on Jan 30th, 2012 til. February 24th, 2012 when one day it appeared in our checking account, which was very surprising, since we mailed it in and only assumed it would be mailed back. I am happy it all worked out, but I guess my question is, how can we prevent this from happening again and how can we stop it? Also out of curiosity what happens with her from the IRS for filing a false claim, anything or is it just a nother slap on the hand? I realize she will have to pay the money back, but even with that she can make payments to them right? Thank you for all your help in this matter, it’s very much appropriated. I love the advice and great information you give.

  1285. Tina Way on Wed, 29th Feb 2012 5:00 pm
  1286. As of May 2011 my step duaghter moved in with us full-time. Her dad became the custodial parent and the mother became the non-custodial parent. We have court papers stating this. It also states father shall claim EIC for child starting for tax year 2011 and both mother and father shall claim child as a dependent, father having odd # years and mother on even.
    We had our taxes done and sent them off to be e-filed by our tax guy. We received a call the next day letting us know that our tax form for Federal have been rejected due to the fact my step daughter had been claimed a already and now we would have to fill out papers and send in copies of our court papers proving we are the ones who can claim her. My husband called the mother and asked her about it and let her know that he has to send in papers and this is holding his up because now he is unable to e-file it back since he has to mail it in. She could care less, she already had her money and was spending in on her hair, clothes, new cell phone, family vacation. She told my husband it was not her problem.
    We sent the papers in certified mail and surprisingly it only took a little less then 4 weeks, from the time the IRS receieved them on Jan 30th, 2012 til. February 24th, 2012 when it appeared in our checking account, which was very surprising, since we mailed it in and only assumed it would be mailed back. I am happy it all worked out, but I my question is, How can we prevent this from happening again and how can we stop it? Also out of curiosity, What happens with her from the IRS for filing a false claim, anything or is it just another slap on the hand? I realize she will have to pay the money back, but even with that she can make payments to them right? Thank you for all your help in this matter, it’s very much appreciated. I love the great advice and information you give.

  1287. Admin Roberg on Thu, 1st Mar 2012 1:21 am
  1288. Hi Joseph,
    I think you have a pretty good case. I’d start with the updated court order–because she’s fooling the IRS with old paperwork. And if she’s letting someone else claim your daughter–well that’s just outright wrong.
    So–go ahead and amend your returns. You can go back as far as 2008–but you can’t wait until after tax season–you must amend 2008 BEFORE April 17th 2012. Don’t let her put you off about that. Even if she wants to wait on the others, 2008 must be completed before tax season is over or you automatically lose.

  1289. Admin Roberg on Thu, 1st Mar 2012 1:29 am
  1290. Hey Geritza,
    So you don’t have any guess as to who claimed your daughter? Sometimes that happens. Although it’s most likely someone you know–there are theives that steal social security numbers of kids. (I had a client whose child’s identity was stolen when she was born–a thief stole the social security numbers of babies at the hospital–so stuff like that really happens.)
    Anyway–the IRS will never tell you who stole the number. What you need to do is paper file the return and prove you’re the parents–which should be easy. You may learn who did it as you go through the process–or you may not. That’s the part that drives me the craziest–I think you should have the right to know–but there are other laws involved.
    Anyway, do go through the process–you’re in the right and it’s the best way to fight the thief.

  1291. Admin Roberg on Thu, 1st Mar 2012 1:34 am
  1292. Hey Gabriel,
    Your best answer lies in your new court order. Does she still get to claim one? Even if she does–she is only entitled to the dependency exemption and the child tax credit–she should not get head of household or EIC. You should get to keep the head of household status and the EIC if you qualify. You may want to check out this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    It sounds to me like you’re paper filing and winning every year–am I right? If that’s the case, it might be time to contact your attorney. Sorry I don’t have a good answer for you.

  1293. Admin Roberg on Thu, 1st Mar 2012 2:11 am
  1294. Hey Tina! Thanks for your post. You paper filed your return and got your money back within 4 weeks. That’s great. A lot of people have been asking how long it takes and it used to take much longer so that’s really good news.

    Now, your question about how to prevent it from happening again–I don’t have a good answer for that. Eventually the IRS will catch up to her, she will have to pay the money back, but it’s frustrating to see someone go on vacation, buy cell phones, and stuff like that while you’re trying to feed your kids. Sorry I don’t have a better answer.

  1295. Carla on Thu, 1st Mar 2012 5:28 am
  1296. My ex and I were never married. He’s never paid child support for our 8 year old, but he does pay her school tuition every other month. Our daughter lives with me and spends a day or 2 with him, every other weekend at the most. I’ve always claimed her but he is now asking me for her ssn# so he can claim the tuition he pays every other month ($500). Should I give it to him?

  1297. clyde jordan on Thu, 1st Mar 2012 8:29 am
  1298. Hi my sons mother claimed him this tax season and she had told me I could last year she took me off child support and gave me custody of him I still have my paper work showing that he lives wit me and I filed my tax return last week by paper and I was just wondering would that court document be good enough to let me win this since he is only two plus she only wored 3 months last year where by I wored all 12

  1299. Tina Way on Thu, 1st Mar 2012 6:04 pm
  1300. Thank you for your response to my post.

  1301. Gabriel on Thu, 1st Mar 2012 10:24 pm
  1302. Thanks for the info. Yes I paper file and win every year, The new court order does not specify tax fillings. I just would like to know why the IRS is so blind to this?

  1303. Veronica Miranda on Thu, 1st Mar 2012 11:06 pm
  1304. Hi, I hope you can help me with my question cause is a little bit different than the rest. My ex-husband claimened me on his tax return, I found out when I tried to e-file and couldn’t do it. Now, I know what to do if I want to fight this case, what I don’t know is what is going to happened to him, if the only thing is for him to return the money I’m ok with it, but if he can go to jail or not be able to file tax return for years then I won’t do it, I’m really upset for what he did but he is my sons father and I don’t want anything bad happening to him. I thank you beforehand for your time and hoping you can help me. Thank you again.

  1305. Macy on Thu, 1st Mar 2012 11:24 pm
  1306. Hi Jan, I have a few questinons for you.My son and I live with my parents and I do not work so my parents will be claiming me and my son since they support us both all year loong since his birth in 2010. I worked throughout 2010 so I claimed him on my taxes for 2010. This year, my child’s father, whom never lived with our son claimed him on his taxes right away so when my mom filed hers it got rejected right away. She sent he file in through the mail on Feb 7 2012 and we have not heard anything from the IRS yet. It clearly states in the quidleines that he must live with the child for more than half the year. I feel that my parents meet this qulification and he is wrong. If so, will he be ordered to pay back the portion he received for our son? Also, about how long will it take to hear anything from them and to resolve the investigation?

  1307. Admin Roberg on Fri, 2nd Mar 2012 3:05 am
  1308. Okay Carla you know I’m going to say no, right?

    Okay maybe not–but I’d be really careful with this. What state do you live in? Illinois has a tax credit for tuition for elementary school, but here in Missouri we don’t. So–what’s he really trying to claim? Plus–if he’s claiming the tuition–well he’ll have to claim a dependent. So–what’s the end game?

    Paying tuition is a good thing–so I’m not opposed to you allowing him to claim the dependency exemption and child tax credit–if you choose to do so. Just make sure that whatever he’s doing is on the up and up and he’s not bamboozling you, okay? (How do you spell bamboozle anyway?) Is that even close?)

  1309. Admin Roberg on Fri, 2nd Mar 2012 3:10 am
  1310. Hi Clyde–
    Here’s the thing. I’ve got a divorce decree sitting in my file drawer for a guy that says his son lives with him for 180 days of the year. I know for a fact that his child only lives with him every other weekend. The IRS knows it too. A lot of those decrees say stuff that just isn’t true. That’s why the IRS expects you to prove things. The divorce decree won’t hurt you–but you’ll need more that just that piece of paper to prove your child lives with you. (Because your ex already claimed him.)
    The fact that you made more money won’t help you here–you need to prove that your son lived in your house. That’s the thing you’ve got to prove.

  1311. Admin Roberg on Fri, 2nd Mar 2012 3:23 am
  1312. @Gabriele,
    I honestly don’t know. I do know that the Taxpayer Advocate has brought it up before Congress–but–well don’t get me started.

  1313. Admin Roberg on Fri, 2nd Mar 2012 3:28 am
  1314. Hey Veronica–
    Just when I think I’ve heard everything—

    Okay, the question is–did he claim you as a dependent or did he file a tax return in your name and take the refund?

    If he tried claiming you as a dependent–he’ll probably just have to pay back the money–no, no, bad boy.

    If he filed as you–that’s big time fraud and that could land him in jail.

    I’m guessing he just claimed you as a dependent. I would recommend filing and claiming yourself back.

  1315. Admin Roberg on Fri, 2nd Mar 2012 3:33 am
  1316. Hi Macy,
    It sounds to me like your parents do have the proper claim. I’ve been telling people that it can take up to 5 months, but I recently had a post from someone who got their refund in 4 weeks. (See the post from Tina Way.)
    Now, I think Tina was really lucky–but keep your eyes open. I’m guessing that since you claimed your child last year, it will take more time because your parents will have to complete the audit papers. But at least it seems like the IRS is trying to move a little faster on these things. Good luck.

  1317. Carla on Fri, 2nd Mar 2012 3:41 am
  1318. Thank you for the advise. We’re in California. I’ve already filed and received my refund. Is he still able to claim her as a dependent?
    I hope he doesn’t bamboozle me but it’s possible with this guy.

  1319. Alyssa on Sat, 3rd Mar 2012 12:56 am
  1320. My son lived with me and my current husband for almost the whole 7 first months of 2011. I am not certain, but I think his current common stepmother has claimed him as my e-file was rejected. My ex didn’t work any of 2011 and my son moved in with them in mid July. I have it in my decree that I claim all children. Divorce was in 2000. I paid his health insurance the time he lived with me as well. What do I do?

  1321. Admin Roberg on Sun, 4th Mar 2012 12:40 am
  1322. @ Carla,
    Hi Carla–California has a tuition and fees deduction on it’s state tax return–but that’s the college tuition deduction. There have been several attempts at passing legislation for a California private school tax credit, but to the best of my knowledge–none of them have been passed. You might want to check with a California preparer, but I’m thinking he’s making a mistake.
    Since you’ve already filed and gotten your refund–you’re safe, but I wouldn’t hand over your daughter’s social security number anyway.

  1323. Admin Roberg on Sun, 4th Mar 2012 12:52 am
  1324. Hi Alyssa,
    You’re going to paper file your tax return. 1. You had your son the longer amount of time. 2. You have the court order. 3. I don’t know, I’m an accountant, I just like the numbers.
    But seriously–this is your win. You might also want to see my post on Court Ordered exemptions: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/

    But you’re arguing on time–because he did live with you for 7 months. The time argument gives you EIC (since you’re married you don’t need head of household filing status.) If your income is too high for EIC, then you can still claim the exemption and the child tax credit. If you are not required to pay support–then you can just photocopy the parts of your divorce decree that says you are entitled to the exemption and mail that in with your paper filed tax return. (It will greatly speed up the process.)
    If you do qualify for EIC–then your decree won’t help because you’ll have to prove your son lived with you. That will come later–just get your tax return mailed in for now. Good luck.

  1325. jessie on Sun, 4th Mar 2012 7:45 pm
  1326. hi, i asked a couple questions before but i had one more i looked and didn’t see a definite answer with the find search of the page, its concerning a primary residence order. me and my ex share our two children one week me and one week her we have had an agreement to each claim one child each year and have done that since their birth but this filing season she hurried and filed first and filed both. because four of my weeks i didn’t have them. she has also started a new custody trial in august. but to the point..her lawyer offered settle with same half and half weeks and legal, the only change would be to put her name as primary residence, i think i odd and suspicious that it has something to do with tax filing maybe. is it like if i missed one week out of the year somehow the order of primary residence would be the deciding factor? and just to know ahead of time , when it comes to irs will it be down to just a couple days more? they might seem silly question i just wonder where the line is drawn, thanks again!

  1327. Jan Roberg on Sun, 4th Mar 2012 7:57 pm
  1328. @Jessie–
    your questions isn’t silly at all. It’s actually pretty smart. You and your ex have the kids 50/50 but now she wants it in the legal documents that she has the primary residence? You bet it has something to do with taxes.
    And yes–the IRS can actually decide a custody case based on a couple of days so it’s really important for that to be figured out.
    Now–I’ve seen decrees that have 50/50 with the exact days drawn out but the parents don’t really follow those orders–that’s why the IRS makes you prove you really had physical custody of the kids even if your decree says you do. But–you’ll want to protect yourself. Especially if you are prone to having the kids 50% or more of the time. You might want to talk to your lawyer to make sure that you are treated fairly.

  1329. jessie on Sun, 4th Mar 2012 7:59 pm