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

 

1,227 thoughts on “My Ex Claimed My Kid: Now What Do I Do?

  1. Hi Marion,
    I wish I had a good answer for you. I don’t. There are penalties, there are fines. But the IRS is hesitant to prevent a parent from claiming a child. I haven’t seen much progress. I’m sorry.

  2. Hi Marion,
    Some people have posted that they’ve had great success when sending in all the documents on the front end. I’ve heard other people say it didn’t help at all. I figure that it can’t hurt – but make sure you send copies – not the originals as you might need to send them again.

  3. How can the situations described in this blog be prevented from happening year after year? My ex claimed my chilldren this year fraudulently. I don’t know when I will see me return as I paper filed and sent in supporting documentation at the same time but my bigger concern is having to go through this every year. What’s to prevent him from doing it again?

  4. Very helpful article. When you say Months for a return to be resolved is that always the case? When I was forced to paper file because my ex fraudulenty claimed the children I sent in the court order stating that I was to claim the children. Historically, I have always claimed the children. Do you think sending in the documents on the front end will help expedite a return?

  5. Hi, I need some help with this. I filed my taxes about a week ago and the part where it asked about the EIC I put yes and I put do I have more then half of the year. I think I was suppose to put no. I have two kids. We usually do the claim every other year I claim my daughter. My son dad efiled his and it was rejected because it said that someone else tried claiming. Soon as he told me that I immediately sent in the amend same day I filed. Which was a week ago. Today I check my account and my refund is there. I was thinking that maybe they would hold off on the refund. I have a few questions. Will both my kids father still be able to claim the child and get the refund for them? That’s my main concern. I should have not just claimed them at all I guess I misread the EIC. One of the kids father sent his thru the mail. My other child dad said that he and his wife efiled thru another company but have not heard anything back yet. What happens it most cases like this? I don’t want any issues at all and I want to continue the every other year thing. It was my mistake. Will they both get the refund and will I have to owe?

  6. Hi Sierra,
    First, I’m sorry about your situation. That had to be hard raising a child while homeless. I’m glad things are better now. That said, you still had your child with you for the whole year, even if you didn’t actually have a “home”. Fill out the IRS paperwork the best you can. You may not of had a roof over your head, but clearly your child was not with your ex so how is your ex going to prove the child was with him?
    You might be able to get some free tax help near you. Here’s a link to find an IRS taxpayer assistance center near you.
    Granted, some of those people are (insert nasty word here). But – some of them are really nice and understanding and helpful. And those people are a blessing. If you can get one of them to help you, that would be great. I think that might be your best shot right now since you don’t have excess funds for an attorney. Good luck!

  7. Hello,

    I am currently being audited for my 2015 taxes. My son’s father did file using our son in 2014. I mailed in my return, then the documents they asked for, and received my return. Then, Jan 2017 I get a notice for this audit! I have already faxed in documents showing he has been in my care and everything, even filed my taxes for 2016 already. Problem is I claimed HOH but we were homeless until Sept of that year, but my son was still in my care 365 days for the past 3 years….I really need advice. Should I get an attorney??? I’m a single mom and I live paycheck to paycheck so that’s going to cause a burden….BUT…At the end of the day I need to handle this so is their anything I can do?

  8. I have had 80% custody of our 2 kids for 7 years. Have claimed them every year since divorce. Recently took ex back to court for increase in child support and her response was I want 50/50 custody. She lost that case and I guess claiming kids on taxes was her way of getting back at me. Guess it’s time to contact IRS and go after her.

  9. My Dear Angela,
    You win! You’re in the right. No fear! Who the kids live with is everything. Money is nothing.

    Now, what you might want to do it claim the three that you can and e-file just to get your refund faster. Then file an amended return claiming the fourth child. One thing is you’ll see how much the fourth child is worth – dollar wise. It will be easier to see if it’s “worth it.” I would guess that it is, but you’ll see the numbers for yourself.

    But the bottom line is – you are in the right. Don’t let anyone intimidate you.

  10. Hi Vina, Here’s a post for you: split exemptions

    It might be helpful. Also, you should check with your attorney about when your husband needs to quit claiming your son. Does it stop at age 18? Some decrees stop at 18, other continue for as long as the child is in school. I’d check with my lawyer if I were you.

  11. Hi Wendy,
    According to the court documents, the ex has the right to claim the one child. But the ex can only claim the exemption and the child tax credit, not the head of household filing status or the Earned Income tax credit (if he qualifies.) Here’s a post about that: Split Exemption

    Your son and his wife should do their tax return, claiming what is legally theirs to claim and paper file the return. That’s how to report it to the IRS.

  12. Hi Alicia,
    Thanks for that post. So you paper filed an amended return and got your money back within two weeks? That’s got to be a record. Somebody upstairs loves you!
    So, just to get the order straight. It sounds like you e-filed without the kids to get at least that part of your refund. Then you filed an amended return with all of your documentation attached claiming the kids. The key issue being that you had good documentation which made your case. Sounds like a good plan. Thanks for posting!

  13. Hi Tashanna,
    Number one is that you want to file your taxes as early as possible, beating out the fraudster. Sorry, that’s lame advice, but that’s the best. You need to report the identity theft to the IRS. They are very reluctant about issuing PINS for children, but supposedly they will do it. If you didn’t get one for 2016, according to the IRS website it means that they did not settle your identity theft prior to December.

    So, job one is to make sure the IRS knows you child is a victim of identity theft and it’s not a case of an ex just claiming her. In the meantime, you’ll be paper filing all those returns and going through the process of proving she’s yours, and she lives with you, and you support her and all that. Good luck.

  14. Hi Jay, first thing is to make sure you’ve only claimed what your entitled to on your tax return – just the exemption and the child tax credit. (Common mistake, so I have to ask.) If you did it right, then check with the ex. Did she only claim the Head of Household and EIC if she’s entitled? (Another common mistake for divorced folks)

    My guess is your ex claimed the exemption too, instead of just HH. Which may or may not have been intentional. If if was an honest mistake, then she simply needs to amend. And you either paper file or what until her amended return is processed.

    If her “mistake” was intentional, then you have a different problem. You see, she should have given you a form 8332 to show you have the right to claim your child. Without it, the IRS won’t do anything. Then it may become an issue for your lawyer to force the issue. Sorry.

  15. Hi Sarah,
    That sounds like a question for your attorney. The IRS would allow you to claim your kids, but I don’t know about what would happen to you if your ex took you to court over it. That’s why you want to talk to your lawyer.

  16. Hi Spencer,
    If you did not have your daughter with you for more than 6 months then you should not be able to claim her as a dependent on your tax return. But it also looks like your ex cannot claim your daughter either. I mean, CPS had your child for 8 months, right? I’m sure your intentions are good, but you weren’t providing support and she didn’t live with you – so the exemption is not yours to take. Sorry.

  17. Hi Jan,

    This site was very helpful. I’m wondering if having my ex audited is even worth it? I have physical and legal custody of our 4 children.They live with me, all year. Their dad see’s them 22 hours every other weekend (on the weekends he does get them) and does pay child support, it’s garnished, a little under what court ordered. I work part time and go to school part time. I just filed, HOH claiming all four kids (my divorce papers say 2016 is MY year) and all exemptions. The next day they were denied because a social on at least one of my dependents were already used in a tax return this year. *Side note, he called two weeks ago and asked me if he could claim at least ONE child because he was getting demoted and would end up owing. He was on speaker phone, with a witness in the room, and I told him NO 3x. He claimed all 4 last year. Verbally and through text said he would give me half of the tax return from the kids. I saw NONE of it. So this year I said NO!* Seems as if he filed anyways and I didn’t sign any papers allowing him to. I have a meeting with a tax person next week, to file by paper, with a copy of my divorce papers. This site (and comments) helped me to know what to expect with the next steps as I have no problem proving they lived with me. *He’s not on the school or Dr office papers even*. I guess my question is, he does make 5x more then I do (including child support), is fighting this (as a principal so he knows I won’t continue to allow him to walk all over me) worth it? Being audited by the IRS scares me, but I’m within my rights, so I have nothing to be scared of. It’s just intimidating. Do they go by who has the children or who has more income? Thank you for any input you may have.

  18. If my son is over 18 and lives with me full time can I claim him on my taxes if my divorce papers say different?
    Columbus, OH | an hour ago
    My son has lived with me for 3 years straight, full time and I pay for everything for him. I was divorced when I was young and my ex-had it in the divorce papers that he gets to claim our son every year. I did it so I could get a divorce. My ex-was abusing me and I needed to get out. I am older now and I pay for everything for my son since he chooses to live with me full time in the last 3 years. I have let my ex-claim him every year still. Our son is over 18 and I feel that since I have had him and have taken care of him and I can show proof. Am I wrong and if I do claim him, can I get in trouble. Sometimes its just not fair!

  19. Hello,
    My son and his new wife have been told that her ex husband already claimed their two children on his return. Problem being, full-time custody for the one child was with my son and his wife, never the ex but court documents say he does have the right to claim one of the children because at that time they shared custody 50/50. But in 2016 he was unemployed, evicted from his rental home and ended up in a homeless shelter so both kids lived with mom. We can’t understand how he ever thought he could claim two children as dependents when he obviously could not be providing for them in his situation. He has not paid child support in a year. He has not only prevented my son and his wife from receiving the refund they are actually due, but he has committed fraud!! What can they do to fight back? How can they report his false claim and to whom?
    Thank you so very much for any advice!!
    Angry Mom

  20. I have a situation, cps had mad daughter in there custody from jan 2016 to late august 2016..me and mom signed court order stating she gets her full time weekly and I get her every weekend no child support involved everything is split down the middle she gets to claim our daughter though come income tax..well she got custody back late august and lost custody again late October cps took our daughter from her care and placed her with me full time and here we are feb 10th 2017 and I still have my daughter full time her mom has only seen her 3 times since late October. well I filed incometax already and claimed my daughter because mom lost custody. did I do wrong. I wanna make sure the money is used on or for my daughter and if it goes to her mom who doesn’t have her and prolly wont get her back will spend it else were
    if she did even have her for 2 months and lost custody now I have custody technically I have had her longer.
    please can I get some advise

  21. Hi Broke Dad,
    What I have done for other in your situation is just file a simple return with $1 of other income on your tax return and claim your daughter as your dependent on your return. You need to have some income to file the return which is why I chose $1. It won’t give you EIC, or child tax credit or anything, but it will bet your daughter’s social security number used AND prevent your ex from claiming her on her taxes.

  22. Hi Shelly,
    Your child support isn’t taxable but your babysitting income could be reportable, taxable income. It might help you to qualify for EIC or a child tax credit You might want to sit down with a preparer to walk you through it. This post might help you: Proving You Have Income

  23. My child’s father has claimed my daughter 4yrs in a row now behind my back. I have custody and he has visitation. Mind you he was in prison the 1st year was released and decided to claim her. What exactly do I need to do to prevent this, what forms do I need, and regain what’s owed to me?

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