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

 

1,256 thoughts on “My Ex Claimed My Kid: Now What Do I Do?

  1. Hi Nicholas,
    Okay – you’ve got a weird thing here. You shouldn’t both sing an 8332. Only your ex should sign an 8332. She signs it so that you may claim the dependency exemption. Then she only gets the head of household and the EIC. My guess is that either she also claimed the exemption, or you accidentally claimed HH. Here’s how it should be done: How to Do the Split Exemption the Legal Way

    It’s a little confusing, you might want to get some professional help. But I’m guessing that one of you did an overclaim and that’s why you’ve got a reject.

  2. I was divorced in 2013 and had joint custody of my 2 kids, my ex then moved from Ohio to Texas a year later and left the kids with me, to be with her now-husband. At the time, the court said that we could each claim a child on taxes. I have since taken her back to court and received full custody and she has the summer and standard holidays. Between 2013 and 2016 the court never updated the tax exemption section of our paperwork so she was still claiming one of them but the children saw their mom less than 90 days each year (and didn’t even talk to her for weeks and up to 4 months at a time while with me). 2016 I had enough of the ghosting, so I filed an amendment on my taxes to claim both kids. I took her back to court this past February and was awarded (minimal) child support, and had the paperwork updated so I can claim them both on taxes officially. Fast forward to now, the IRS finally caught up and sent her a letter. Everything I can find on the subject says she shouldn’t have been able to claim them regardless what the court says, because the IRS is federal and you shouldn’t lie about where the kids live. I have paid for way more than half my share. She also was court ordered to get a job to hopefully, up the child support to something better than less than $100 a month, per child. I’m basically doing it all on my own. Am I in the wrong?

  3. It is in my consent judgement that the father she’ll be entitled to claim the following minor children as dependents for all state and federal income tax purposes the mother shall be permitted to claim head of household or earned income credit for said children if permitted under state and federal income tax under the circumstances that the other party is claiming the dependency exemption. We both signed IRS Form 8332 which in 2013 I file my taxes and it was rejected by the IRS because she filed also. What can I do about this?

  4. Hi Alicia,
    I was just talking about that. Here’s a link to my post about how that works: Splitting an Exemption

    Your daughter lives with you. If your Ex claims the exemption, he still cannot claim EIC because your daughter does not live with him. The back up to my argument can be found in the IRS Publication 17 on pages 28 and 32 (for 2017.) Here’s a link to that also: Pub. 17

  5. I made a foolish agreement in court that my ex and I would alternate claiming our daughter on our taxes. He’s been beating me to the punch repeatedly claiming her on years that are not his. In addition I recently figured out he’s been getting the EIC every year. The child lives with me 365 days. In 2016 he did not visit wit her, paid $100 a week in support, which went to afters choose costs. I pay her health insurance, food, clothes, transportation, keep her housed and extracuricular activities.
    Yet, I was told by IRS that if HE claims the exemption, HE gets the EIC. He said we couldn’t split it. I see in one of your responses you said otherwise. I am confused. Please explain.

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