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

Photo by Marcin Moga on Flickr.com

 

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:  Your questions are important to us and to the readers that may have the same question.  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) 872-2111 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 Saint Louis area because of the due diligence requirements.

1,079 thoughts on “My Ex Claimed My Kid: Now What Do I Do?

  1. I was audited and have to prove my children lived with me in 2014 and i paid $2000 in child care expense while I worked. The problem is a family friend watched my son what can i give to them to show that because there were no receipts. Also, what would be the reason I got audited other than someone else claimed them for tax year 2014? This same thing happened in 2012 but not 2013 and yes their father claimed them in 2012. Thanks so much for taking the time.

  2. Heres my husband and I’s situation. We had full custody of our 3 kids for 9 months in 2014 I went to file our taxes using turbo tax and efile like we did last yr this yr just to get rejected due to my husbands parents unlawfully claiming our kids for the EIC. I have proof they lived with us but the filed for full custody and has had custody since december of last yr my issue is we lived right acrossed from his parents so audit questions will be able to be answered correctly by his parents but i worked hard for my money and made 17000 in 6 months and now i’m out over 8k from my tax refund what do you recommend we should do. I thought of just filing without my kids but i would end up owing the IRS instead so now i’m in quite a pickle!!

  3. I can not believe your dedication to this. May god bless you. Here is my question:
    We divorced in 2013. The original divorce decree said we have join legal and physical custody 50 50, one week with me and one week with her. We will alternate claiming the child every year. Two months after the divorce in 2013, she relocated out of state. The child has been living with me since 2013. She did not pay a dime for his raising. Today, i was filing electronically my tax, but it got rejected. She claimed the child while she did not see him at all this year and she did not pay a dime. I have a court order saying that the Child support stopped from my side and the mother relocated out of state. I have all his school records, doctors, therapy,,,,etc. Will i win this case if i submit it to the IRS?

  4. Can I claim a child tax credit of previous year 2011 now in 2014, which I did not claim on 2011 as my son does not have ITIN and applied first time in 2012.

    I came here in US in Feb11th, 2011 and my wife and son joined me later on July 4th, 2011. My wife and I filed taxes, Married jointly as a resident aliens for 2011. My son is living with us here in USA from 2011.

    His total days of presence in US for 2011 was 181 days. As per substantial presence test for a qualifying child his stay must be more than half year. Is 181 days stay more than half year and qualify him as a resident alien for 2011

    When I filed a federal tax at 2011. I did not get child tax credit of my son as he does not have a ITIN at that time. Can I claim his child tax credit now?

    Also If I amend my Federal Tax return do I need to amend my state tax too?

  5. Hi, my wife and I split January 2015. We go to court April 14th. We were waiting on the lawyers to agree on us splitting the refund for 2014 before filing together. But the last time I checked with her she said she went ahead and filed. We have the right to file married. And it would help me. I’m sure she claimed both kids. What can I do? How do I find out her income for 2014 so I can file an amended? Can I file an amended without her agreeing?
    Should I get an extension and then request the court to make her file married with me for 2014? Or to allow me one of the kids? I’m at a loss. Any help you can give would be greatly appreciated. :)

  6. Hi,

    My ex in arrears on child support. In our decree, it clearly states that he cannot claim exemptions if in arrears. But, this year he filed, claiming at least one of our children. When I tried to file, I was rejected. So, now I am paper filing. Do you think the IRS will eventually allow me to claim all children, based on our decree? I have pages from the decree, and a court order from 2014 that details a payment plan to get him out of arrears in 2 years, that I will use a proof when the time comes.

    I am in Illinois.

    Thank you,
    Jan

  7. I have a court order that says I can claim my child on my taxes even number years,my ex claims her odd number years.Its been like this for the last 8 years,well my ex claimed her this year(2014) she says by accident..Knowing her like I do it wasn’t an accident.My child does live with her 9 months out of the year and with me 2 1/2 months.She has custody of her.Do I have a legal right to force her to amend hers so I can file and claim my child since I do have a court order stating I claim her for this year?

  8. Hello Jan,

    My Ex-Wife and I have been divorced since 2013. We have one child together. She claims her for the odd years and I claim her for the even years per the divorce decree. She claimed her this year and they kicked my efile because of it. How do I handle this? The way that I think I read it is that if I mail in my taxes because she has her more then I do it will automatically side with her no matter the decree. I pay my child support and have her 156 days out of the year. If the IRS does automatically side with her, is small claims court my only option? Thanks.

  9. How do you do all of this when the child was removed by Child protective Services and the court has given you, the uncle, temporary custody. The child has lived with you for 22months and were told they could not claim him on their taxes?

  10. In regards to this:

    “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.”

    This is what I thought when it first happened to me but this statement is actually inaccurate. My ex illegally claimed our daughter 2 years ago and I went through the whole process of providing the IRS evidence that I had sole custody of her and “winning” yet he was still able to illegally claim her again this year and so I am going to have to go through this entire thing… again. From what I understand, even once the IRS determines that you are the only person who can claim the child, if someone else claims them and files their taxes before you do, you’re out of luck. It seems I’m going to have to make the mad dash to the accountant each year in hopes of beating him to the finish line. PLEASE tell me there is another way.

  11. My ex and I divorced in 2003 and had a joint custody of our 2 children. At the time our Judgement stated that we will each claim one child but when the oldest child can no longer be claimed we rotate who claims our youngest child. In 2013 our custody order was changed and I was granted physical custody of both children and he only had visitation of our youngest child about 100-120 days out of the year. Since the change I claimed both children on my return and was denied because he did the same. We amended our return and sent it to the IRS and I was immediately awarded the EIC. This past year custody yet again changed and he only had our youngest child for about 48 days. Again this year he is attempting to claim both children even though I have already done so. He is stating that he is going to report me to the IRS because the 2003 order states he can claim a child. Can you please clear the air for me.

  12. Hi Stela,
    Actually, you’re right. I’m sorry. When I wrote that post, I believed in the process. But as you’ve learned, it’s amazing how it happens over and over again. I have campaigned for PIN numbers for children – no deal. TIGTA, the office of the Treasury Inspector General has basically told the IRS the same thing. No avail.

    I wish I had a better answer for you.

  13. Hi Mike,
    you do it the same way as a parent. You use the court document showing that the child has been placed in your home. That will be your main argument right there.

  14. Hi Layne,
    First, I’m furious that the IRS agent told you that since your ex filed first he got the money. Yes–he got the money, but you’re allowed to fight back and get what’s yours.

    Now, first thing to do is print out your 2014 tax return and send it to the IRS through the mail. This is going to take time, and there will be paperwork, but you’re in the right and you will win.

    Second, you’re going to amend your 2013 tax return and claim your child there also.

    And, I believe that if you really want to push it, your parents might possibly amend and claim your child for his first year. That might be more difficult, your ex might actually have a real claim so I’m not positive on that one. Your ex left you when the baby was four months old. If he left you in say April and you lived with your parents for 8 months–they’re winners. If he left you in December and then you moved in with your parents, your ex wins. See how that can be tricky?

    But definitely you should be claiming your child for this year and last year.

  15. Hi La-Chanda,
    My best guess is that your ex claimed your child again. Most of the time it’s an ex, although this year there’s been a whole lot of “non-ex” fraud so you need to be super careful with your child’s social security number. But best guess is your ex.

    Now, to prove you paid your friend to watch the kids, just have her write a letter. Of course, he’s the kicker–if you claimed that you paid her to get the child care credit, then she should have reported that income on her tax return. If she’s not claiming the income, then you shouldn’t be claiming the credit.

    So here’s the thing for her, if she reports that iincome, unless you’re paying household employee taxes (and I’m guessing you’re not) then she’s got to pay self employment tax on that. Now, even if she’s in the zero percent tax bracket, the self employment tax is going to be around $300 (unless she can write of her expenses.) So–don’t be expecting a letter from her to save you money if it’s going to cost her a bundle.

    Now, you could pay her employment taxes–but that would cost you about $300. Here’s more information on the nanny tax: http://robergtaxsolutions.com/tag/nanny-tax/

  16. Hi Jess,
    Well here’s a question for you. What’s best for your kids? Now yes, you had custody for 9 months, but did they really live with you? I’m being a pain here I know, but why are the in-laws filing for custody? Were you not caring for the kids?

    Seriously, the whole point of EIC is so that there’s money for taking care of your kids. Now going by the strict letter of the law, you had them for 9 months you should win. But–did you really have them? Did they sleep in your house or did you just have paper custody?

    Are the in-laws going to use that money to feed and clothe your children or will they squander it away on drugs and booze? My guess is that if they were bad people, the court wouldn’t let them have your children. So let me ask you again, what is best for your kids?

    As the parent, with more time (if they really stayed at your house) you have a right to claim them. But if yo’re taking food for your children off the table, are you really doing the right thing? I think this is one of those cases where you need to look into your heart and see what’s best for your children.

  17. Hi Alan,
    I think you have an excellent case. When one parent leaves the state, and doesn’t even see the child, it’s pretty hard to prove the child lived with them. You’re pretty solid.

  18. Hi Lokesh,
    I apologize but I am answering that question way too late. If you begin with an ITIN number and later get a Social Security number, you may amend your tax return and claim the child tax credit and other tax credits (most notably EIC.) But you only have three years to amend your tax return for a refund. You would need to amend your 2011 tax return by April 15 2015.
    I’m sorry but you posted you question at the height of tax season and I’m not answering these questions (I’ve got to to tax returns so I can get paid and pay the mortgage.) I hope you got an answer someplace else and filed that amended return on time.

  19. Hi Will,
    You’re kind of up a creek without a paddle. Here’s a couple of things to know:
    1. It’s FRAUD–as in go to jail illegal, if you file a tax return using your wife’s income and forge her signature. So please don’t do that. Seriously, don’t do that.

    Okay, no I forget everything else, that one was so important.

    Oh yeah, so she’s already filed and you’re screwed. (Sorry, but that can really mess up a tax return.)

    This is my best recommendation: make nice. Seriously, be nice. Did you ever see the movie Roadhouse with Patrick Swayze? He’s training the bouncers in the bar and the mantra is “be nice.”? That’s your mantra. Be nice.

    Explain kindly and gently how important it would be for you to file jointly. What did she get as a refund? You agree to reimburse her for whatever she’s losing by filing jointly.

    What, she’d come out ahead filing jointly with you? great–you’ll pay her the extra. Whatever it takes. Whatever you do, be nice.

    You need to be nice because this divorce isn’t settled yet and you’ve got kids. Remember, your kids are the priority here. You’re not just fighting for this one tax return, but all of your future tax returns as well. And, more importantly, you’re fighting for the future of your children. Always remember that.

    If being nice fails. Then it might be time to not be nice. Since both you and your wife lived with the children for the entire year, the tie-breaker goes to the parent with the higher adjusted gross income. I’m guessing that that’s you. You would mile as married filing separately, claim the kids, claim the deductions (if you itemize) and let the war begin. But this is only a last resort. It’s not good for a “happy divorced family” situation. So, if you go this route, use extreme caution.

    Remember: Be Nice!

  20. Hi Jan,
    The IRS doesn’t care about any kind of divorce decree that has conditions. If the children lived with you, and I got that impression, you’re good.

  21. Hi Joseph,
    You should read this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/

    I think when you claim the exemption, your ex can still claim head of household and EIC. If she did it right, you should still be able to file if you take you child only as an exemption. (People do this wrong all the time, but if it’s done correctly it works.)

    Maybe this is the post you need: http://robergtaxsolutions.com/?s=splitting+an+exemption

    I hope that helps.

  22. Hi Jan,

    We received our foster children through CPS in mid-June. They have lived with us since then with no breaks except sleepovers with friends. The placement wasn’t made official buy a judge until July. We are filing late as we did not get their soc. sec. numbers on time, so we did an extension. Now we find out that someone else has claimed them…

    It was our social worker who suggested we claim them. I am assuming that as foster parents we count as “parents” to the IRS (though we are not technically licensed, but chosen through the kinship care/suitable adult route as we were known to the family) so what we need to do is show that they have in fact lived with us since mid-June. Am I right?

    Thanks!

  23. I am just curious, if I have it in my judgment of divorce that I am the custodial parent and reserve the right to claim the child, will I need anything else to prove it? this has not happened to me yet, but my ex is a real doozy and I am anticipating this happening to me next year

  24. Hi Dana,
    Just because your divorce judgement says you are the custodial parent doesn’t mean you really are. I can’t tell you how many times of seen people with “custody” documents who haven’t seen their kids in years. (Nuts, right?)
    Anyway, if you suspect you may have a problem in the future, the divorce decree will help, but make sure you can back it up. School records, medical records, a lease agreement showing your kids live with you. Stuff like that.
    If your ex has your kids spend nights over at his house, then you might want to keep a calendar of the nights your children spend with you versus when they are with him.
    If you think he’s going to give you trouble, the best defense is a good offense. Be prepared, and try to file your taxes as early as possible. (I hate giving that advice because that shouldn’t be the case, but a refund in your hands is way better than being in the right about claiming the refund that he’s got.)

  25. Hi Lis,
    since you have proof that you were chosen as foster parents by a government agency then you have your proof right there. And, I’m assuming you’ve got plenty of proof that the children do in fact live with you.
    Go ahead and file that paper claim.

  26. Hello I have a question my ex and I were never married and I have custody of my boys but in court it was set for him to give me 500 a month but hi lost his job and he doesn’t care if he helps me or not he doesn’t help me with anything. But at the court the judge told him to give me 500 a month like I said and since March he haven’t giving anything and the judge also said that I could claim my 2 boys on the even years and my ex can claim my oldest son the odd years. My question is since he haven’t helped me at all since March until now he doesn’t even care he only provides for his daughter and not my boys. Can I claim my oldest son his 5 without me getting in trouble? I don’t see fair for him to claim my son even known his not even working he only goes to school and I work full time and decide not to go to school to provide for my boys. Please help I’ll appreciate!.

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