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

What to do if an ex spouse claims your chlid for taxes

It’s a hassle if someone else claims your child on their tax return, but that doesn’t mean you have to give up.

 

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:  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

 

1,107 thoughts on “My Ex Claimed My Kid: Now What Do I Do?

  1. My ex and his girlfriend (my sister) having claiming my children for the last 12 years without my consent. What can I do?

  2. Wow! I have just read this entire comments section and am absolutely in awe of all the caring professional advice Mrs. Roberg has given to all these people in need of help. I have suffered from this same tax fraud by my ex for the last 4 years, for 3 children that have been in my full custody. @$20,000 in lost tax credits for my children thus far. It is really sad and sickening that people could even fathom to do this to their own kids… much less get away with it.

    Filing fastest should not be the answer, and once caught these people should be punished with impunity. This is about helpless children who are entrusted to adults to do the right thing. The laws on this need to change now!

  3. Hi Lora,
    Technically, even though you have joint custody – since the boys residence is with your ex, then he is in the right to claim them as dependents on his tax return in the eyes of the IRS. So – he’s sitting with all the power.

    Now – perhaps you have a divorce decree that allows you to claim a dependent. Even so – you would only be allowed to claim the dependency exemption and the child tax credit. You would not be entitled to claim the head of household filing designation, nor could you claim EIC, or the child care credit. Those all go with your ex.

    If your ex is willing – he can sign an 8332 form to allow you to claim the dependency exemption on one or both of the boys. Sometimes, a person can release these rights without losing anything if their income is in the right window. But most likely – your ex would be losing something to give up the exemption so it’s not going to be easy for you to persuade him, unless you’ve got a court decree saying that he has to.

    It used to be (before 2009) that you could just file the return, claiming the exemption, and attach a copy of your divorce decree to prove your case. But from 2010 and after, that won’t fly anymore.

    Now I’m guessing that you and your ex are not on the best of terms. But, just in case I’m wrong, you should read this link: http://robergtaxsolutions.com/2015/01/tax-strategy-for-exes-that-get-along/

    It’s for exes that get along. If you get along, and work together, you may find that you can both come out ahead. I have a few couples who figure out what their refunds should be using “the divorce decree” and then they work together to see where they come out ahead. Then they either split the extra money or use it towards their child’s college savings fund.

    Back to your initial question, what are your options? The way things stand, your ex wins. If you’ve got a decree giving you an exemption – you may be able to take it to court – but going straight to the IRS won’t help, they don’t care. Sorry.

  4. Hi Kali,
    So do your children live with you or with them? If the kids live with them, then they don’t need your consent. If the children live with you, then read the post above and follow the directions.

  5. Hi Matthew,
    Thanks for your kind words. I actually tried to get a petition started to provide identity theft protection pin numbers issued to families like yours that have been repeat victims of this kind of tax fraud. Although I didn’t succeed, it looks like the Treasury Inspector General has been working on this. I saw a PIN space for dependents on my tax software this year. Although I didn’t file a single tax return that had one. But maybe someday we’ll get there.
    Good luck to you on trying to claim your children. It sounds like you’ve got some back tax money due you.

  6. I’m going through the same thing, I had plans to use my refund to file my divorce, however I was onky able to claim my two girls my ex husband filed my boys when I told him not to do it,I’ve supportes my kids without his help since Nov 2014, and i allowed him to fike the boys for that tax year because he legally helped for more then 6 months however for 2015 he barely did a thing and my kids lived with me long story short he filed the boys and I had to amend my return it’s been a long lengthy process,however my kids live with me,i have all records,and they are on my lease,I’m going to file a civil suit against him once all this is settled.

  7. Hi Gabi,
    Good luck. I hope you claimed your kids on that amended return of yours. It’s a pain to fight these things, but when you’re in the right, you go for it. I’m rooting for you!

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