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.

_______________________________________________________________________

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

 

1,167 thoughts on “My Ex Claimed My Kid: Now What Do I Do?

  1. Hi. I have a question I have two kids with my ex. Our court papers say he can claim one each year as I claim the other. Well, the Issue is he only pays 400 a month and I pay just in daycare 1,160 a month. On the tax info it says if you pay 51% of the child which he doesn’t not even close, but it’s a court document. How can I fight this?

  2. Thank you so much Jan !!!! You were a great help and a blessing. Haber a Merry Christmas to you and your family. Thank you again

  3. Hi Britney,
    You have a court document that allows your ex to claim your child as an exemption on his tax return. Done deal there. You cannot fight it unless you go back to court.
    But it does sound to me like you have custody of both of your children. Right? In that case, he is only allowed to claim the exemption and the child tax credit – he does not claim head of household, EIC, or the child care deduction for that child. Now, you may make too much money for the EIC tax credit, and you already can claim head of household for the other child, but at least you still qualify for the child care credit on both children.
    But here’s a link that might help you, just in case: Split Exemptions

  4. how do i protect my child this year from being claimed by someone that i don’t know who is claiming her i am trying to protect her now before they file

  5. My husband and his ex girlfriend have 3 children together (1 18 y/o girl and twin 13 y/o boys) per court documents when they separated they both have joint physical and sole custody with one claiming the girl and the other claiming the twin boys then alternating every other year for taxes. The girl has married this year so is no longer able to be claimed by either parent now. It was my husband’s year to claim her so he suggested they both claim one. She refused as its her year to claim both…so he will claim 0 this year. He told his ex next year he will claim 2 for the twins as it would be his year and his ex will claim 0 as it would of been her year to claim the girl, she refused saying she is going to claim 1 and he can claim 1. As she always does taxes first if she does claim 1 and we get rejected should we pursue the audit as it should be his year to claim the twins? The court document doesn’t specify if u can no longer claim one what happens. I’m assuming that if u can’t claim the girl it becomes null and void and have to claim 0.

  6. What if you have a court document stating that, every year the mother gets to claim her son as of 2015+ As a dependent, and head of household and so on. The father never sees his son, even when hes offered 4 hours a week lol, nor even wants to take the opportunity/effort. And hasn’t paid child support half of this year. Should I proceed on taking it to IRS? From stopping him for the near future? And if I find out like a year later, could I still do something about it? Will I get back what he didn’t deserve? Would he have to pay a penalty? (He is an illegal immigrant) I would greatly appreciate any advice that anyone has for me.

  7. Hi Doreen,
    Sadly, the best advice I can give you is to file as early as possible. If someone does use your child’s id and your tax return gets rejected, you’ll just have to paper file again. Hopefully, someday the IRS will have this all straightened out.

  8. My son and his ex girlfriend have two kids. Last year his ex let her mom claim one of kids on her taxes. Can she do that? They do not live with her mom. Does my son not have in rights with you can claim his children?

  9. Hi Hannah,
    Okay so your court document allows you to claim the exemption. It says you also get head of household, etc. but technically, you can only get that from your child living with you, not the court document. (At least by IRS standards anyway.) But that’s okay for you since it seems you definitely are the custodial parent here.
    Nothing can actually stop your ex from trying to claim your child – as evidence by all the comments here where somebody claimed a kid they shouldn’t have claimed. But you have weapons! You’re in the right for claiming your child so even if your ex tries – you can still file and win.

    It’s not that you will get what you ex didn’t deserve – you will get what YOU DESERVE! That’s important. You may go back and amend for up to three years. Good luck.

  10. Dear Lost Grandma,
    The big question is – does you son live with his children? The grandmother should not claim kids that don’t live with her, but your son should not claim kids that don’t live with him either.
    Bottom line, if your son is not the custodial parent and there is no court order allowing him to claim the children – then no, he has no rights in this situation. Sorry.

  11. I Was With A Girl From April 18 2015 To Oct 1st 2016 i Lived With Her The Whole Year An 3 Months Together She Had No Job I Payed All Expenses. Last Year I Claimed Her Kids I Kno This Year I Could Too Becuz I Had Them In My Care For 10 Months Only Thing Is I Don’t Have To Much Proof Other Then Proof Of Residents

  12. My question is pretty basic. My ex has claimed my child every year for the last 11 years, because I can not find the number to report it in the middle of this ocean of wrong turns to the answer. Please can anyone help?

  13. Hi Lashun,
    First question, does your child live with you? If yes, then you want to paper file your tax return claiming your child. You can go back as far as three years. That’s where you start.

  14. Hi my ex tricked me in our divorce agreement to claim both kids every year on taxes, we have 50/ 50 only in paper work my son is with me 7 days week spends maybe 4 hours at his father’s I pay for all kids activities and other needs he does pay his child support. But claiming one child would help a great deal. Do I have any legal rights to over change my divorce ?

  15. Hi Chrissy,
    you would probably need to go to court if you wanted to change the agreement. But remember, the exemption is only the exemptions and the child tax credit. You still retain the head of household filing status, the child care credit, and the EIC if you qualify. See this post: split exemption

Leave a Reply

Your email address will not be published. Required fields are marked *


*