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

 

1,142 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!

  8. Good afternoon! I have a case for which I am teetering back and forth on resolution. The situation is a couple, now divorced with 3 children. I represent the husband in this case, dating back to 2010. I initially thought the issue lied only in 2013 – 2015. After reviewing his IRS Tx, I realized he owed a lot of money dating back to 2010. The now ex-spouse filed HOH back in 2010 and filed for my client as MFS. She claimed all 3 of his children, but communicated to him they had filed jointly, thus securing a large refund for herself and leaving him owing a tax liability. The same thing happened in 2011. She erroneously filed his 2010 and 2011 – without his knowledge – resulting in a large liability for him. My question is, what is the best route? They lived together 12 months of both years, and have 3 kids. I can’t split one of them and claim 1.5 kids 🙂 I am not sure how to amend this particular situation. She didn’t agree to MFJ, so I can’t do that but she should not have filed HOH and should not get credit for all 3 children. I appreciate your time!

  9. I am currently facing a similar problem. My ex boyfriend claimed my children so i amened my taxes to claim them and now the amend wasnt processed. My boyfrien WAS NOT the children’s father nor did he pay for half or more of their support. I”m fuming!

  10. Hi Danielle,
    Yikes! That sounds sticky. I think the biggest issue is that she lied and filed tax returns for the husband without his knowledge. On the other hand, shouldn’t he have looked at the return to sign it? But then again…I could go back and forth for hours. I understand your predicament.
    I’m not sure what the best course of action is. I can only throw out a few options – which I’m guessing you’ve already gone over yourself, but sometimes it’s just good to bounce off of someone.
    Do you think he could file for innocent spouse? It seems to me, he was a victim here.
    I think your issue has more to do with how many children to claim. Here’s where I’d go with that. Who made the most money? I’m guessing it was him – which means that if he were to fight and go for the IRS tie-breaker rules – he gets to claim the kids. All the kids. Now I realize this isn’t nice, but his ex started it now didn’t she?
    He can’t get head of household. The best he can get is MFS, so I’m thinking the deductions won’t erase his tax debt. But, you can use the figures of what his tax debt should be on the innocent spouse request. For example, lets say for those years he owes, $10,000 as far as the IRS is concerned. You rerun the figures as MFS with 3 dependents, now his tax debt is $4,000. So he agrees to pay the $4,000 not the $10k – or whatever the figures actually are.
    Or, and maybe this is better, you run the numbers as married filing jointly – showing what his share of the liability would be – (same excuse, she fraudulently filed returns for him) and only have him pay his fair share. By the way, I again would put the deductions and credits for the children all on him.
    I realize that you want to be fair, because you’re honest and trustworthy and fair. But in this case, I’d ask for everything and make the IRS walk it back halfway is they want to. Unless you’ve got a real compelling reason for not claiming all 3 kids – like one of them isn’t his or something, I’d claim them all.
    I’m leaning towards going straight for the innocent spouse first. That way, you’re not officially amending the returns – which are already out of statute, but it leaves you the opportunity to amend if the innocent spouse request is denied. Good luck.

  11. Hi Marie,
    It takes awhile for those amended returns to process. (Like 6 months these days!) I’m guessing that you’ve checked the “where’s my amended tool. Here’s the link: https://www.irs.gov/filing/individuals/amended-returns-form-1040-x/wheres-my-amended-return-1

    It will take a good 15 days before they acknowledge that they even have your return. If it’s longer than 21 days and it doesn’t show they’ve received it, then it’s time to call- and probably resend it. Good luck!

  12. My husband and his ex-wife divorced 4 years ago. Their divorce decree clearly states that he claims their son in all years and his ex-wife claims their daughter in all years. His ex-wife does not work and has no taxable income so she has been allowing her live-in boyfriend to claim BOTH children for the last 3 years. Both of the children live with my husband’s ex wife and her boyfriend. Can her boyfriend legally claim the kids? I know that the kids are do not qualify as a “qualifying child” because he is not married to their mom. They may qualify as a “qualifying person” if he can prove that he provides more than half of their support. I am almost certain that he does not.

  13. Continued from previous post:
    My husband pays more than $1000 per month in child support, provides medical insurance, and pays for any educational costs. There is no way that his ex-wife’s boyfriend provides more than that. What are your thoughts on this situation?

  14. My grandsons and daughter have been living with us since February. My daughter has filed for child support full custody as the father chooses to have nothing to do with the children. The father claims one child and my daughter the other. Question is, since the father has nothing to do with either child and the children have been living with us for over half of the year, so far, can the father still claim the children?

  15. Hi Dawn,
    Want a job? You understand “qualifying child” and “qualifying person” – that’s a big deal in this business!

    And here’s where we get to have fun! They boyfriend might be able to claim “qualifying person” but that would only entitle him to claim the exemption for the kids, NOT EIC, or head of household.

    Your husband has that divorce decree that says that his is to claim the exemption for the boy. Now, in order for him to be able to claim the exemption, his ex should provide him with form 8332 – which I’m guessing that she hasn’t. I wish the lawyers would have custodial parents sign those at the divorce closing. (But when I’m working for the other side I always say not to sign – so I see why they don’t.)

    Anyway, your husband could go to court over this and sue to have his ex release the exemption. Or, he could just file a return and claim the exemption for his son for the years that are in question. (Or amend since I’m guessing that you’ve already filed.)

    This is what will happen. You will get a letter stating that the child has already been claimed. Are you sure you want to claim that child? You will say yes. That starts the audit process. Then the boyfriend will get a letter – asking him to prove his claim. You’ll be asked to prove your claim. My guess is that the boyfriend claimed EIC and head of household in addition to the exemption. (They almost always do!) That would send him into a world of hurt because that would come out in the audit and he’d have to pay that all back.

    You might lose the audit – because you don’t have the 8332 – which you probably won’t get without going to court. But he’ll lose even more. I’m only telling you this so that you have a bargaining chip. Claiming EIC for a child that is not yours is illegal. (He won’t go to jail for it, but the fines and penalties are pretty steep.)

    Of course, the boyfriend might not have claimed EIC. He might have done it right. (I do doubt that, but I have to mention it anyway.) If so, he could get a child tax credit for the boy either, so that value of claiming your husband’s son on the boyfriend’s tax return is not that large. It’s going to be his tax rate times $4000. (So $1,000 if he’s in the 25% tax bracket.)

    If your husband claims the boy, your husband gets the exemption PLUS the child tax credit – an additional $1000. So it’s doubly good for the boy to be on your tax return over the boyfriends. Remember, your husband doesn’t get to claim EIC for the child either as he’s not the custodial parent.

    Hopefully I’ve given you enough information to help you and your husband decide what to do next. Good luck.

  16. Hi Kelly,
    The answer is: maybe. It all depends. Are they still married? Is there a divorce decree allowing him to claim the exemption? Your daughter has more power here is they are not married.

  17. My grandchildren 17, 15,9 yrs depend on me all the time ,their mom on ssi don’t work , father never supports them not a pair of shoes ,loaf of bread NOTHING,, he goes from job to job so courts don’t catch up with him, its MEMBERS who comes up with money for Christmases birthdays school clothes and food in between,I love my grandchildren and would do anything,but their so called father dose nothing ,but always claims them on his income taxes W 2 ,is there anything that can be done about this ,sence my daughter dosnt work and don’t file , thank you, #treatedunfairly

  18. Dear Treated Unfairly,
    Do your grandchildren live with you? If they do, then you could claim them on your taxes? There would be an audit, but if they live with you and you are supporting them, then you would win.

  19. Hi Jan! My husbands ex wife claimed the 2 kids when the divorce decree said that in that year his ex should claim one and my husband the other. What is the best approach? We were thinking to present it to court since seems like the IRS don’t want to get involved…Thanks

  20. Hi Frustrated,
    What’s the best approach? The one where you win, usually. And then, what’s a win? I’m guessing that your husband does not have the kids more than 50% of the time, right? So the best he’s going to get is to claim the exemption and the child tax credit. So, that value of claiming that child is about $2,000. So – if you go to court, what’s it going to cost?
    Often, exes claim the kids thinking that they’ll lose their EIC if they don’t. The ex can keep her EIC, just lost the child tax credit. So if you bring her to court, what will it cost her? If it’s possible to negotiate with the ex, before taking it to court, you all win. But – you know the situation much better than I ever will. Maybe court is the only way to play it. Good luck.

  21. My ex claimed our child last year with my verbal permission since I had no income last year. This was the first filing since our divorce. Do I need to or should I file a form 8332 (Release/Revocation of Release of Claim
    to Exemption for Child by Custodial Parent) even though I did not give written permission before?

  22. Hi Amy,
    Technically, you’re supposed to sign the 8332 and give it to you ex and he’s supposed to attach it to his return. Now, in real life, he’s e-filing and it’s not getting attached. (Some day the IRS will correct this, but they haven’t as of yet.) It would be proper for you to sign one and give it to your ex so that he’s got it in case he ever gets audited. But only sign the form for 2015 – don’t sign away the other years (there’s a place on the form to let you give up future years, I always recommend that you don’t sign that, handle it on a year to year basis.)
    What happens if you don’t do anything? Probably nothing. It’s only an issue if he gets audited.

  23. I asked my brother to claim my kids in 2014 so I can pay some debts, he did. But on 2015 I did not authorize him because I was gonna have my mom do it but it was already done..now they won’t give my kids their share..how do I go about this

  24. Dear Doublecrossed,
    Are you telling me that you cheated the government and had your brother illegally claim your kids, then you wanted your mom to illegally claim your kids but your brother already did and he won’t give you the money? And now you’re asking for my help?
    I’m guessing that you don’t mean it that way, but that’s the way your comment sounded like. And you know, if you’re trying to cheat the government and your co-conspirator turns around and cheats you – gee, what are you gonna do? Call the cops?
    But I assume that you and your children were living with your brother for more than 6 months in 2014 and he had every right to claim them on his tax return as their uncle. So who did the kids live with in 2015? Did they live with your brother again? If they did, then he had every right to claim them again and you have no case.
    If, instead the children lived with your mother, then she could paper file the return and claim the children. Of course, she would have to provide proof that the kids live with her like their school or medical records. If she can’t prove that the kids lived with her, then don’t even waste the IRS’s time with that. She’s going to lose.
    Now, I’m sure you’re not doing this, but I’m going to talk about it because I know some people do just let other folks claim their kids in exchange for money. I figure that people reading this post need to know about it – it’s illegal. It’s tax fraud. You could get caught and you could get in big trouble. Don’t let other people claim your kids that don’t have any legal right to claim them.

  25. My ex husband died early 2013 and both children came to live Full-time with me.. I am the biological Mother. Before he died, we each claimed a child per the divorce decree. He married a woman ( she knew ex was terminally ill) and he survived a year. I have a court order with 100% custody and her ” guardianship suit was denied”. Feb 2014, oldest child turned 18 and continued to live with Mom until she moved away to college in the summer of 2014. Child did Not live with stepper at all in 2014. Stepper denied Mom a copy of ex’s death certificate and it took months to get the DC ( government shut down etc). Stepper fraudulently claimed both children for 2013 1040 which I ( mom) filed amended after my return was rejected by IRS and got my EITC etc eventually. When I filed for year 2014, my 18 yo had already been claimed ( by stepper although she refuses to discuss with me or my daughter): so my CPA resubmitted my e-file with just my youngest claimed. We thought stepper would just ” do the right thing ” and pay the remaining $5,000 ( $2,800 already paid from tax withholding) but stepper won’t even admit she claimed oldest ( but child saw steppers return where she claimed her at her house). Since my daughter turned 18 early 2014 and lived on her own close to 50% of 2014 I told her it was okay with me for her to claim herself as HOH since she had a job and might want to get a student loan ( especially since stepper…the Trustee of children’s trust fund” cut her off from any monies for college etc ( manipulative woman). My CPA also advised me to just let my 18 yo ( now 20) deal with the stepper ( who I filed assault charges on when I tried to talk to her about the children’s missing passports and documents). Oldest daughter was able to keep IRS from putting her account into ” Collections” at the last second. I told my daughter to see a Tax Advocate and explain that stepper illegally claimed her. Mom did File daughters tax return for 2014 ( despite revising my own return and removing her when my personal return kicked back on the efiile).
    SO. DOES SHE HAVE TO INITIATE THIS WITH TAX ADVOCATE OR CAN OLDEST DAUGHTER JUST FILE AN AMENDED RETURN CLAIMING HERSELF AS HOH? Also, can she also claim her new computer, books and living expenses on the amended return ( things my CPA didn’t itemize the first go around because my daughter paid for these herself…now that she is going to claim herself instead of Mom claiming her for 2014?) She is Afraid of stepper taking her car ( deceased dad left daughter( 17 when he died) but stepper put title in steppers name and manipulates her with the car. I did file an Information report with Police Comcerning steppers frequent Fraud/ ID theft I am frustrated that this woman did this two years in a row. The first year IRS took away her EITC and gave it to me but then she turned around and did it Again! Why doesn’t IRS do more to these Frauds?

  26. Hi Eyeris,
    You’ve got a whole lot going on here. I’m going to answer your last question first – why doesn’t the IRS do more to these Frauds? They’re trying, but you see what you’re dealing with. It’s crazy.
    One thing that really jumps out at me is the whole bit about your college age daughter filing head of household. Does your daughter have a child? If not, there is absolutely no way she can claim head of household.
    Also, if she is a college student, and not supporting herself, she is considered to be a dependent – either yours or the Stepmother’s.

    So here’s what I recommend – you’ve got a CPA that you’re working with. Let him sort through this issue. Let him do the taxes-including your daughter. From what I’m reading, your daughter can’t claim her living expenses on her tax return – hand this back to the professional. You’ve got a really funky situation and if you submit an amended return claiming stuff you can’t claim – well it will only give the Stepmother more ammunition.

    But here’s the thing- she does have ammunition. She is a legal parent. She was married to your daughter’s father, and that does give her some rights. I know that’s not what you want to hear, but that’s the part that makes your case so difficult.

    You need a professional to sort this all out – which you’ve got.

  27. Hi Jan ,
    My kids father claim our 3 kids for last year taxes when he did nothing for our kids or live with me over a year and far as health insurance my kids all underneath me. Do you know how long the process take for the irs to investigate the situation….. Like I’m not getting no type of hep from anyway ….I even try to schedule a face to face appointment with the irs to discuss my situation but they told me over the phone they don’t make appointment for people that claim your dependents . But I already filled out a form about someone claiming my kids and still ain’t hear nothing from irs. So I don’t know what to do from there….

  28. Hello! My divorce decree granted 50/50 custody of our daughter to myself and my ex. It also states that “the child dependency exemption *may* be taken based by the parents based on the percentage of support of the minor child as set forth in the child support calculation and they *may* alternate who takes the exemption each year. My daughter is with my 90% of the time and has been since the divorce granted him 50/50 custody. However, he claimed our daughter for the 2015 tax year as his dependent. What should I do? File with her as my dependent also and let the IRS decided (based on # of nights) or file without her as my dependent? He pays no child support but is also has the lesser AGI (by almost half). Please help!

  29. Hi Tia,
    So you’ve already filled out the paperwork – I’m guessing that you’ve also mailed a paper copy of your tax return with you claiming your kids to the IRS. If you haven’t done that, that’s what you absolutely must do. But if you’ve done that already, then now you’re playing a waiting game. The only advice I can give you now – and I apologize because it’s pretty lame advice, it to make sure you file your 2016 tax return as soon a possible next year. It’s sad and embarrassing that that’s the best I can offer, but being first is probably your best defense against people who try to claim your kids.
    It sounds like you’ll win your case for 2015 – it’s just you wind up waiting so long for your refund it’s ridiculous. Good luck.

  30. My best friend is going through a divorce with an abusive husband. He refused to file jointly with her in the spring of 2016, but now after seeing how much tax he owes he wants her to go back and amend t file married-jointly so they will qualify for the earned income credit and he won’t have to pay. Her CPA says this is a bad idea because it is basically a guaranteed audit and she will be investigated as well because of filing jointly. There was not much time for the CPA to do research on this however, since their court date is very soon. It seems like you have more experience and I was wondering what you would advise. If she agrees, it is a strong negotiating point for her to get the custody schedule she wants, (they temporary 50/50 orders) but she also wants to protect herself. If it is written in the court document that she is exempt from payment for any audit, does the IRS follow that? It was my understanding they do not have to, but their paralegal is claiming she would be safe. Please advise, thank you!

  31. Dear Ongoing Battle,
    The bottom line at the IRS in a case like this is who has the child spent the most nights with – in your case its you, so you win. Now, just for argument’s sake, if you and your ex get along – here’s an article for you: http://robergtaxsolutions.com/2015/01/tax-strategy-for-exes-that-get-along/

    By working together, you two may be able to maximize the benefits of claiming your daughter and use the extra money to pay for her education or other needs. Of course, it only works if you can work together. But it’s worth checking out.

  32. Hi J –
    The courts and the IRS are not always on the same page. But at least she would have a court document showing that she is exempt form any audit. If she were to be hit with an audit, and fees were assessed, I would file for innocent spouse and use those court documents to back up her claim.
    My personal opinion is that she should not file jointly with her husband – but then again, I’m not the one fighting for custody of my kids.

  33. Hi Jan,
    My ex and I got together when my son was born 2015…i let my ex claim my son that year on his incone tax. I lived with him at his mom’s house for a few months till we fought and he kicked me and my son out. We got back together though in 2016 and worked it out…we moved into my dad’s house….till we fought and he recently left. He never paid my dad rent or anything. He has paid my phone bill only for a few months…thats it. Now that he left I don’t feel he has the right to claim my son again…for 2016….i took care of my son, i bought him his stuff…which i regret now not keeping receipt. I feel that I should claim him for 2016 or my dad…since we are in his house. How can I get to claim before him or what should I do?

  34. Dear Lost,
    It sounds to me like your ex is not the father of your son. He has no legal right to claim him at all. If you are not working, and you’ve lived with your father for over 6 months of the year, then your father should claim your son. If you have worked during the year, then you should. If your ex is the father of you son, then he will have the right to claim him. So, I guess the question for you is – is his name on your son’s birth certificate?

  35. Hi Jan, my son and his ex have 50/50 custody of my grand daughter, with physical custody to her mom. My son is on disability so don’t work, and his ex and my grand daughter actually live with me. She don’t work or have any income, I pay for everything and take care of both of them. Can I legally claim my grand daughter with her living here and me paying for everything from diapers to clothes to toys, etc. My son don’t usually file taxes, but he wants to claim my grand daughter year. PROBLEM IS it’s not him trying to claim and file, he wants his girlfriend to claim her because she worked all year and does file taxes. My question is who can legally claim her ? Me as a grandma caring for both grandbaby and her mom or her dad’s girlfriend ??

  36. I’m in a situation as well. I had my children in the year 2014 through cps custody and was put on child support in august. I had my kids the first half of the year. The mother claimed them while filing a false address cuz she lives in section 8 housing and filed jointly with her boyfriend. I don’t know if I can still file. It’s been 2 years. The money she got is long gone. My refund was rejected. What can I do

  37. I got a letter from the IRS stating someone else claimed my child on their taxes — I know it was the father.There is no court agreement stating who has the child more than 50% of the time. How does the IRS go about proving who the custodial parent is? If I have claimed my child for the last several years, would that affect how the IRS views my most recent claim?

  38. My children lived with me for the full year of 2015 but their dad has custodial parent to keep them in city school system. Personal things happened and my daughter didn’t go to her dad’s not even one day but yet he filed her on his taxes wich is messing up my return because I have been audited. I’m not sure what to do to prove they lived with me even tho parenting plan states he is primary parent.

  39. Hi Maria,
    First – your son’s girlfriend cannot claim his daughter on her tax return. 1. She is not the mother. 2. She does not live with the child. 3. It’s illegal. So that’s a really bad idea.
    The ex has phsyical custody, so she has the first right as far as claiming your granddaughter. But she has no income so she has no need to file. That means that you – since the child lives with you, and I’m guessing she has lived with you for over 6 months – which is the rule – then you may claim your grandchild. You may claim her exemption and you may claim head of household, and if your income is low enough you may claim EIC. Now if the mother really has no income (or less than $4000) then you might also be able to claim her as a dependent, but she would have to live with you for the entire year for you to be able to claim her too.
    (Grandchild needs to live with you for over 6 months, son’s ex needs to live with you for the entire year – different rules for different relationships. Confused yet?)

  40. Hi Eryk,
    So you had the children for the first half of the year? Who had them the second half? Did you have them for over 6 months? Or less? If you had the children for over 6 months and you have a legal right to claim them, then you need to paper file that tax return. It’s not your problem that your ex already spent the money. The IRS will send out audit notice letters, you’ll be asked to prove that you had physical custody of the children, etc. All you have to do is prove your case.

  41. Hi L,
    How do you prove that your child lived with you is probably one of the most asked questions in a case like yours. Is your child in school? Use the school records. The address on the report card is a good indicator that the child lives with you. Not in school yet? What about the medical records? You should have well child visits and immunizations. Where do the bills go?
    Neither of these work for you? Then it gets more difficult. Are you renting? Does the landlord show you child is on the lease? Do you attend church? Does your religious leader know your child? Could you get a letter there?
    I had one client who didn’t have anything– no school, no medical, no church, no nothing. We were really scrambling to prove he had his daughter more than the mother did. I finally got a little frustrated with him and I said, “Well, how do you KNOW she was with you more when you don’t have anything to prove it?” (Not my most sensitive moment, I confess.) And he said, “Cuz, it’s all on my Dad’s calendar! He writes down every day XXXX is at our house so he knows what to make for dinner.” The IRS accepted the grandfather’s calendar.
    There are so many court agreements saying that the parents have 50/50 custody – but they don’t really. Those court agreements aren’t really worth anything when trying to prove where the child lives. If your child lives with you, I’m pretty sure you can prove it. Good luck.

  42. Hi Tracey,
    It’s going to be harder to prove your daughter lived with you if she attended school in your ex’s school district. How did you get her to school every day? Did you meet with her teachers? See my note to L above. I had a friend who was divorced, she moved out of the neighborhood but wanted to keep her daughter at our school. Everybody knew they were living out of the district but the dad was there. It was a “secret” because everyone was afraid that the daughter would get kicked out of school for not living there. One day, I happened to be volunteering in the office when the “nasty busy-body mom” comes storming in and goes to the school secretary, “Are you aware that XXXX doesn’t live in the district? She should be expelled immediately.” (What a witch!) And the secretary said, “Thank you for that information. I’m afraid that I can’t discuss student information with non-parents. Have a nice day.”
    Well, I was pretty worried about the little girl but the secretary turned to me and said, “Can you believe her? Of course we know the girl doesn’t live here with her dad, does she think we’re stupid? The best thing for that child is to be here in this school, with her friends. Expell that child over my dead body!”
    The point here is that somehow, if not the school, somehow, you should be able to prove your child lives with you.

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