Can My Boyfriend Claim My Child by a Different Father on His Tax Return for the Earned Income Credit?

Dad with his Kids on Father's Day

The IRS doesn't care how good a "Daddy" is. It's all about the strict tax law.

Short answer: No.

Long answer: Noooooooooooooo! Sorry about the bad joke. But really, no he can’t and here’s why:

First, and most importantly, it’s against the law. Seriously – claiming a child that you don’t have a right to claim on your tax return is income tax fraud and that’s a federal crime.

But how would he get caught? Good question. The most likely way he’d get caught is if someone else tried to claim your child on their tax return, like the child’s real father or a grandparent. Someone might have a problem with you or him and turn you in to the IRS. It’s one of the most common questions I see on the internet: “How do I turn someone in?” I’ve worked on a couple of cases where an older child has accidentally turned someone in by filing paperwork for school which somehow got into IRS records. You don’t want to take the risk.

But the most dangerous person as far as your boyfriend is concerned is you. Let’s say you decide to let your boyfriend claim your child and claim the EIC tax credit because it works out to be more money if he does it. You’re breaking the law too, but when push comes to shove you can break into tears and say he forced you etc., etc. It’s not against the law to not claim your child on your tax return, and proving that you “conspired” with him to commit tax fraud would be hard to do. So let’s say that the boyfriend dumps you and goes out and buys a nice engagement ring for his new girlfriend with that tax refund. I’m guessing that would make you hopping mad, right? Furious! You want to get even, don’t you? What better way to get even with that scumbag than to report him to the IRS. You see why he should be afraid? Very afraid!

So what could happen to my boyfriend if he did get caught? The maximum EIC for one child is $3050 ($5036 for two, and $5,666 for three.) First, he’d have to pay that back. Let’s say we’re just talking about one child, he’ll have to pay back $3050 right off the bat. Then he’d also have to refund the $1,000 child tax credit, so now we’re up to $4050. Now he’ll also have lost the head of household status which gave him a lower tax rate plus he’s lost the exemption so we’re looking at maybe $5,000 (or more if we’re talking about more children). Then the IRS will tack on fines, another 25% or $1250 for late payment fees, and most likely another 20% or $1,000 for under-reporter penalties so you’re looking at about $7250 in taxes owed. Ouch!

It’s also possible that he could be criminally prosecuted. Personally, I have never worked an EIC case that has gone on to the criminal division, but it does happen. What good is your boyfriend to you if he’s sitting in jail?

Don’t create problems for yourself by committing tax fraud. It seems like easy money and the temptation is great. You probably even know people who’ve done it and never had any problems. But if you want to feel safe and secure and get a good night’s sleep, file a correct and proper tax return.

You may also be interested in these posts:

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

Eight Basic Rules to Qualify for the Earned Income Tax Credit


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89 thoughts on “Can My Boyfriend Claim My Child by a Different Father on His Tax Return for the Earned Income Credit?

  1. Hi Molly,
    Yes. He won’t be able to claim your daughter until your return is amended. Now, I’m assuming that your fiance is the father? If not, he can’t claim your daughter at all until you are married.

  2. Ok so. My ex claim my two children on his taxes and they don’t live with him. They see him every Sunday from 7-6. But that didn’t started till oct 2013 but before we went to court he hasn’t seen the kids for a year and my daughter father support them and still do and I have no income.. I’m jw if my daughter father can claim my boys and I under his taxes

  3. I have no income and my daughter father has been support my 2 son and I.. But there father claim them on his taxes but they don’t even live with him. They see him every Sunday from 7-6 and that didn’t start till end of October. But before October he hasn’t seen the kids for a year and I’m jw if my daughter father could claim them since he support and I wanna know how could there father claim them since he hasn’t seen them till October.

  4. Hi Samantha,
    Your daughter’s father may claim your daughter. If you had no income and you lived with the man for the entire year, then he may also claim you.

    Now about your boys. You just went to court–so I’m guessing that there’s something in the court documents about your ex claiming the boys. If there’s anything in that court document allowing your ex to claim the boys, don’t even think about letting your boyfriend claim them.

    Now, let’s say you went to court and there’s absolutely nothing about allowing your ex to claim the boys–but he did already didn’t he? Technically, your ex can’t claim EIC, but that would be wrong. If your boyfriend were to be allowed to claim your boys he would not be allowed to claim EIC either.

    So, would it really be worth trying to claim the boys? Your boyfriend would not get EIC and he would not get the child tax credit either. Your boyfriend already gets EIC for your daughter, and exemptions for the three of you and he gets the head of household filing status. That’s over $20,000 worth of deductions right off the top.

    So with no EIC and no child tax credit, how valuable are those exemptions. If youre ex is already claiming the kids, you’re guaranteed an EIC audit, so think really hard before having your boyfriend claim those boys.

  5. Hello.
    I have two kids with my now husband, and I have one son who is not biologically his. When we were still engaged he claimed our son but also my son who is not biologically his on his taxes in April of 2011. We did not know he could not do that and thought he could. He was the sole provider and we lived with him all of that year. Could he still get audited?

  6. Hi Betty,
    You might not have a problem at all. The only way you would have a problem is if he claimed the Earned Income Tax Credit on your child. If he claimed your son just as a dependent, and no one else can (or will) claim your son, then there is no problem.

    If he claimed EIC on your son, the worst the extra tax could be would be $672. Add 25% to that for late payment of tax and probably some late payment interest and you’re still under $1000. And that’s only if he owed the maximum amount of difference on the EIC. If he claimed EIC!

    But if you lived together for the entire year of 2011, and he was the sole provider then claiming your son as a dependent was the right thing to do. (If you had no income, then he could have claimed you as well!)

    So, if EIC was involved, you should consider amending–but if you had any income, you might even want to look at taking your son off his return completely and you claiming him for the EIC. It might offset the tax owed by your husband. (It might not, you’d have to check it out, remember if you claim your son’s exemption then it would have to come off of your husband’s return also. That would probably increase his tax by more than just the EIC.)

    If there was no EIC involved–I wouldn’t give it a second thought.

  7. I have a question. My fiancé filled online and claimed my daughters since we lived with him all year long and he’s the sole provider of them. We got a letter saying we owe money which we’re in the process of paying it off now. When we get married can he claim my children and get HOH & EIC (he’s 23 years old. I don’t know if that has anything to do with it. We also have a child together now) I have absolutely no income and my daughters birth father hasn’t had anything to do with them since birth. What would we file once we’re married? Any and all advice is appreciated!! Thanks in advance!!

  8. Hi Elisha,
    Good questions. A couple of things–it sounds to me like you’ve got a situation where your fiance really can claim your kids–he can get the exemption, just not EIC. He can’t be head of household, but file as single with dependents. Since you are not earning any income, he can also claim you as a dependent.

    When you are married, he will not be head of household, but you will be married filing jointly. He will be able to claim the children as his dependents and claim EIC.


  9. my ex wants to have her boyfriend file my kids in his taxes. i pay child support they are not married and he has only been around for the last 6 months can they do that she doesnt work so she cant claim my kids

  10. Hi so I have a question me and my boyfriend have a son together and his name is not on my sons birth certificate because at the time I had him by law I was still married and was in the process of my divorce my divorce has been final sence last aug I was told that I need to get my boyfriends name on our sons birth certifcate by fialling an aop witch is going to cost 60 dollars and I dont know how long its going to take to get it processed and a new birth certifacate and he needs proof to file his taxes stating he is his son if I get married to him befor he files his taxes can we use our marriage certifacate as proof and could he claim me as a dependent

  11. Hi Christina,
    If you get married today, you are married for 2015 taxes, not for 2014. If your boyfriend is really the child’s father, pay the $60 and file the paperwork.

  12. I have a question. My girlfriend, my son, and her son have lived with me for a few years now, and i support everyone by myself can i claim hoh and claim both my son and her son and get the eic?

  13. Hi Joe,
    You can claim Head of Household because of your son. You may claim your son as a dependent and it sounds like you may claim your girlfriend as a dependent. It also sounds like you may claim her son as a dependent as well, as long as the boy’s father is not claiming the exemption due to a divorce or separation agreement. You may not claim your girlfriend’s son for EIC. If you and your girlfriend get married, then you may claim her son for EIC also, even if the boy’s father is allowed to claim the exemption.

  14. Hi
    I have been living with my boyfriend for the past two years. I have a daughter that is not his and we have a son together now. He recently did his taxes and claimed both of the kids since I didn’t work all year. He did not receive EIC for my daughter. Would my motherbe able to claim her for the EIC credit.
    Thank you

  15. I have a nephew who has 2 kids with someone. They are no longer together she is now with another girl. His ex is Illegal and does not work on the books. He pays child support plus has his kids every weekend. Can his ex allow her girlfriend to claim his kids and not him?

  16. I have a question what happens when two pedants divorce and the custodial parent doesn’t work and instead of giving the dependent to her ex husband she gives them to her bf what could the dad of the dependents do to file taxes for his kids

  17. Hi there, I noticed you usually answer questions the next day, so I’m curious if maybe I’m missing mine. I asked a question a few days ago and am not seeing the question anywhere or an answer. Wondering if you just haven’t gotten to it yet or if I’m missing it… Hope to hear from you thanks a bunch

  18. Me and my boifriend have been caring for his two children since sep 17 2013 hes gonna claim one on his taxes and wants me to claim the otherone on mine is this ok?? and what do i claim the child is to me when i file?

  19. Hi, really love all the information on this site. My question is can my boyfriend claim my youngest son on his taxes (he is not the father). He has lived with me for the last year and has had a job off and on and maybe provided half of the support. I work but do not make enough to file taxes myself. If he can claim him can he get the EIC and child tax credit?

  20. hi, my ex is married and her husband claimed eic for my son I have shared custody have him every two weeks or so I’m also on his birth certificate can he do this legally considering their married

  21. Hi,
    I have a child that is not my boyfriends child. My baby father pays child support and gave me money and he claimed her on his taxes this year. I didn’t give him permission to. He got her S.S. number off the child support petition. He lives in another state. My boyfriend which we was once married has been together for a long time, wants to claim my baby on his taxes this year and the rest of the yrs. We live together and he has supported my baby since she been born. can he claim her on his taxes or do we have to be married for him to claim her?

  22. My wife and I were married through August of 2012. We were divorced in August. She has a so from a previous marriage that she, by agreement between her and I, let me claim him on my 2013 taxes because I took care of him monetarily in 2012. Now her father found out and she is saying she didnt give me permission. What are the ramifications of this for myself?

  23. 1)Is there law that say I have to give my ex girlfriend money from income tax refund if I claimed our dauther. … . 2) if not what would be fair to give her. Half/ a third/ all/ or just the tax credit and not the EIC. NEED ADVICE

  24. Hi Josh,
    Since your ex is married, her husband may claim your child on his tax return if the child lives with him and your ex. Sorry.

  25. Hi Ray,
    Your boyfriend cannot claim your daughter on his taxes for EIC. Hi might be able to claim her as a dependent–but your ex has been doing that so you might have a court order going on that would keep your boyfriend from claiming your daughter.
    Now, if you and your boyfriend were to get married, then he could claim your daughter and your wouldn’t have a problem (unless of course there was a court order allowing your ex to claim the exemption.) But even so, your husband could still claim your daughter for EIC–even if there was a court order allowing your ex to claim an exemption.
    You might want to read this post:

  26. Hi Scott,
    Technically, your ex should have signed a form 8332 for you. I’m guessing she didn’t but that would have been your protection.
    That said, you were married to your wife at one point so that does give you some claim to the child. Now, since you weren’t living with him for 2013, you shouldn’t be claiming EIC on him, but if you only claimed an exemption, then that’s not such a big problem.
    This post might help you:

    At least, if you ex is trying to claim EIC, then that post might help you. If it’s her father that wants the exemption–because the child lives with him–this doesn’t help.

    But worst case scenario–you’re not a criminal. You had some reasonable expectation of being able to claim your step-child. If you lose, you’ll have to pay back the tax difference, but I think you can argue your way out of under reporter penalties.

    But I don’t like the worst case scenario for you. I think you’re better off talking to the ex and finding out what she really wants. Maybe you two can strike a deal. It seems to me she was willing to work with you before. Maybe she’ll be more agreeable if you can meet her halfway.

    But one thing to remember–since she’s back-pedaled on you once, if you claim your step child again, do make sure you get a signed form 8332 from her to cover your backside.

  27. Hi Javier,
    I actually get that question a lot.

    THE LAW SAYS: you can’t claim your kid for EIC if your kids doesn’t live with you.

    So, when it comes to claiming EIC, it doesn’t matter if you give your girlfriend half, a third, or whatever. If you are not living with your family, you don’t get EIC.

    Now, you may have a court order that allows you to claim the exemption Claiming the exemption doesn’t mean you get the EIC. Read this article:

    If you are allowed to claim the exemption because of a court order, you have no obligation to give any of that money to your ex.

    But–if you don’t have a court order, and your ex gives you the exemption by signing a form 8332, then you two should figure out what would be appropriate for you to give her under the circumstances.

    Now, if you have your child living with you full time, and the mother is not being the responsible parent, then you are under no obligation to give her anything.

    I hope that answers you question. I realize it’s not exactly what you asked, but I have to make sure that my answers are following the tax rules.

  28. Here’s my question. My fiancé and I have been living together now for the past 7 years. I’ve been taking on the role of mother to his two daughters. Their biological mother gave up her rights years ago when they were just babies. He usually claims them on his return but he just recently had a brush with the law and is now incarcerated. Which leads me to my question. Since I am now taking care of them and no one else will claim them, am I allowed to claim them on my return?

  29. Hi Katrina,
    I’ve got a couple of thoughts for you. First–yes, you should be able to claim the girls as exemptions on your tax return as you have lived with them for the entire year, and you are providing all of their support. But that’s an exemption only–they would be a “qualifying relative” not a qualifying child.

    But, it might make sense for you to get court ordered custody of those girls. If you have a court document granting you foster privileges, then you can claim them as “qualifying children” and then you’d qualify for EIC. If your income is low enough then it really makes sense to do that. I’m guessing with him in prison, it’s a little tough to make ends meet so getting something from the courts is going to really help you.

    Actually, if you can get approved as a foster parent, in some places you’ll actually get money to help you with the care of the children. You might want to look into that.

  30. Hi I am 26 yes old i have 2 questions i have been living with my girlfriend for this entire year, she hasn’t kept a steady job and her daughters father of 2 doesn’t pay child support or work, they have been living with me this year I provide food and pay all bills. I’m trying to find out if I can claim her daughters one is 3 the other is 1 and my girlfriend is 23, I have 2 sons of my own and I pay cold support for them never missed a payment but my children’s mother only worked a few months this year, could I claim my sons since I have been paying child support??

  31. I have a question. I had placement of my niece via family court order. I was able to claim her on my 2014 tax return as we had her 8 months out of the year and I paid for more than half of her support. Then we had her this year in 2015. She left us in mid May to go to a short term foster home, she was there about 3 months and now she is in a children’s home and will probably remain there throughout the rest of the year. Did I have her long enough to claim her on my 2015 tax return? I would have had her longer than anyone else during the year?

  32. Hi Marcus,
    You’re in tax hell. You basically support four children that you can’t claim. That’s the short answer.

    Here’s the longer answer, but it’s not much better.

    Bottom line: there is no EIC for you at all. No way, no how, don’t even ask. Just getting that out of the way.

    Now, about your own kids: you might be able to claim the exemption for your two if the bio mom signs form 8332 and allows you to do this. See this post also:
    That’s your best case scenario. You could claim the dependency exemption and the child tax credit. Your ex could claim EIC and head of household.

    Now, about your girlfriend’s kids. It doesn’t matter if the ex doesn’t pay child support–what are his rights for claiming the kids? Does he have any? If he does, don’t even try. You’re better off letting your girlfriend claim the kids with her sketchy income. Claim whatever EIC she can get. It will save you in the long run.

    If she truly has no income, you might be able to claim an exemption only (no EIC, no child tax credit.) And quite honestly, unless you’re 100% certain the bio dad isn’t going to try, I wouldn’t go there. If your girlfriend has no income, you could even claim her as a dependent. I would claim her before trying to claim the kids. (If you’re rank ordering what to do.)

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