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

January 6, 2012 by
Filed under: 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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If you want to hire us, please call (314) 275-9160 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 St. Louis area because of the due diligence requirements.


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

  1. Jan Roberg on Fri, 6th Jan 2012 4:33 pm
  2. The photo above is by Paul Hamilton and it’s on Flickr. I had trouble getting the name up but the link is still with the photo.

  3. oscar on Sat, 14th Jan 2012 4:40 am
  4. cand i claim a diferent child like my nice but she is 9 years old but i live with her mom and i paid the bills will i have problems….

  5. Jan Roberg on Sat, 14th Jan 2012 5:34 pm
  6. Hi Oscar,
    That’s a good question. Your niece may be a “qualifying child” for you. But you’ve got some more questions to ask before claiming her. First, if her mom claims her–you can’t because the priority always goes to the parent. But, if you are living with your sister, and supporting her and her child, you might qualify.
    Here is a link to the IRS website. It’s a questionaire to help you determine if you will be able to claim a child or not. It should take you about 10 minutes to answer all the questions.;jsessionid=F9jPPR8bLhWqHdQY5JlGTdBZhlh2pCFQbqn3bhTJzwdXLVPWwGXf!396704386!724040490

  7. jessica on Fri, 24th Feb 2012 2:48 pm
  8. I am experiencing this situation right now. My ex-boyfriend claimed my kids. I did not want him too. He wanted to claim them so that we could move into a new place but I told him no it was illegal. Well I found the paper work that he got after he filled his tax’s and he did claim my twins any way. I feel like he tried to manipulate me to let him file my twins but when I told him not he took their SS numbers. What do I need to do?

  9. Admin Roberg on Sat, 25th Feb 2012 11:24 pm
  10. Hey Jessica,
    I’m guessing that your ex boyfriend is not the father of your twins, is that correct? If so, then you just go ahead and file a paper return and claim them yourself. You’re the parent, the right is yours. Here’s a different post that might help you:
    Good luck.

  11. Curious DaD on Sun, 18th Mar 2012 2:12 pm
  12. Live with girlfriend and mother to my 14 yr old son, his 7 yr old sister also lives in the household, she has a different dad and mom is not working. I claimed her as my niece erroneously. Should or could I have claimed her as my stepchild if she has a blood relation to my son? I take care of her as my own and pay the bills in the household. Her dad is ducking child support court.

  13. Admin Roberg on Sun, 18th Mar 2012 9:00 pm
  14. @Curious,
    You can’t claim her as a stepchild–for that you would have to marry your girlfriend (the mother of the child.) And you’re right, she’s definitely not your niece. To be honest, she’s not related to you at all.
    The best thing is if your girlfriend has any income is for her to claim the girl. If your girlfriend has no income, then you could possibly claim the child as a qualifying relative, if:
    1. the child lived with you for the full 12 months of the year, and
    2. no one else claims her–the problem here is I’m guessing someone did claim her (like the Dad) and it came back to bite you.
    I recommend just amending your return and taking her off of your taxes.

  15. nicole on Mon, 9th Apr 2012 4:01 pm
  16. my brother and his wife are seperated they have one child together he files taxes every year claiming her and their son as dependants, she has no income and is threatening to get him in legal trouble because this year he only claimed their son and his two other children from another relationship.. she states that he should pay her money i ssay no its against the law.. your opinion would be nice

  17. Admin Roberg on Tue, 10th Apr 2012 2:49 am
  18. Hey Nicole,
    so many questions left unanswered. But I do thing you’re right about the paying off the ex–that’s usually going to be wrong.

  19. Christy on Fri, 13th Apr 2012 1:10 pm
  20. Is there anyway to find out if my ex husband claimed our children on his 2011 tax return before I file mine. I have the children full time and get to claim them I just don’t trust that he didn’t already do so.

  21. Admin Roberg on Sat, 14th Apr 2012 1:39 am
  22. Christy,
    If you e-file your tax return and someone else has claimed your children if will be rejected pretty quickly and then you’ll know. Or, you can call your ex and ask him. Those are really your only two options.

  23. joe on Tue, 17th Apr 2012 8:22 pm
  24. I am seperated and have a court order providing an alternating right to claim my child every other year. I am disabled and not working, leaving me unable to benefit from EIC. My question is: Can my live in fiancee (nearly 2 years) claim my daughter for EIC benefit while she provides more than 50% of household income?

  25. david on Wed, 18th Apr 2012 3:57 am
  26. what can i do if my ex’s boyfriend claimed my daughter on his taxes?

  27. Admin Roberg on Wed, 18th Apr 2012 4:17 pm
  28. Joe,
    No, a fiance’ may not claim EIC for your child. The only way she could claim EIC is if you two were married and the child lived with you. BOTH of those conditions must be met.

  29. Admin Roberg on Wed, 18th Apr 2012 4:32 pm
  30. Hey David,
    If you should be claiming your daughter on your taxes, then submit a paper filed return claiming her. If you have no right to claim your daughter, that’s tougher. If the boyfriend claimed EIC–then you can inform the IRS that he’s commiting tax fraud–but you’ll never know what happens to him, or if he gets caught or anything. Claiming the child yourself if the best way for the boyfriend to get caught.

  31. Admin Roberg on Wed, 18th Apr 2012 4:33 pm
  32. @David–but don’t claim her if you can’t. I don’t want you getting in trouble–that would stink. Here’s about reporting fraud:,,id=106778,00.html

  33. erika on Mon, 28th May 2012 12:32 am
  34. Can my boyfriend calim his 2 kids? but he not full of custody children, only visition every 1, 3, 5 weekends. And their mother doesn’t have job.

  35. Admin Roberg on Wed, 30th May 2012 1:35 am
  36. Hi Erika,
    Since your boyfriend doesn’t have custody of his children, he can’t claim them for EIC. Since their mother doesn’t work, he might be able to persuade her to allow him to claim the kids for their exemption and child tax credit. His ex would have to fill out a form 8332 alllowing him to do that. She would keep the head of household status and EIC if she did have any income to claim, but he would qualify for the $1,000 child tax credit that she probably doesn’t qualify for.
    It’s called splitting an exemption and it’s legal if you do it right. Here’s more information for you:
    Sometimes it’s difficult if couples are fighting, but if he and his ex are working together to do what’s best for the kids, they might come to some sort of agreement. But don’t let him try to claim EIC on those kids–it will get him into trouble and you don’t want that.

  37. michelle on Sun, 16th Sep 2012 4:25 pm
  38. can my step-son’s step father claim him if the stepfather and mom have a common law marrige? is that legal?

  39. Admin Roberg on Sun, 16th Sep 2012 5:12 pm
  40. Hi Michelle,
    Are you sure we aren’t related? You sound like you must be part of my family with your step son’s step father. It’s a little confusing.
    But let me try to straighten things out a little. Your step son’s birth mother is living with a man and they claim to have a common law marriage. Right?
    First, if they were really married–then it’s a no-brainer and yes he can claim the child (assuming that the child really lives with him and the mother.)
    But, you’ve thrown in the common law issue. The IRS accepts common law marriage only in states that accept common law marriage. The common law marriage states are: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Utah and Washington DC.
    But they can’t just live together and say they’re common law married, each state has it’s own rules about it. Here’s a link for more information:
    So, a step parent may claim a child on a tax return–if he is really a step parent my marriage. You’ll have to do a little more digging to determine if their common law marriage is legit.

  41. dave on Fri, 16th Nov 2012 11:25 pm
  42. can ex girlfriend have her bf claim child on taxes if im the father and see her every other weekend

  43. Admin Roberg on Sat, 17th Nov 2012 2:58 pm
  44. Hi Dave,
    Please read the blog post above these questions. Your answer is there. Thanks.
    Basically, no he can’t.

  45. Sasha on Tue, 20th Nov 2012 3:58 am
  46. I’m a stay at home mom and am living with my fiancé. We have a fifteen month old daughter together, but she has my last name not his, and he is not in her birth certificate. Is there any way he can claim her? Also how does it work on him claiming me? I would appreciate the help.

  47. Admin Roberg on Wed, 21st Nov 2012 10:07 am
  48. Hi Sasha,
    The easy answer is to get married. Might not be an option, it’s just the easy answer from a tax standpoint.

    So–your fiance is the father, but he’s not on the birth certificate. So I don’t know how to prove that. What I do know is that you might have some trouble this year. Here’s why–the tax rules state that I (me, Jan as a tax preparer) have to do something called “due diligence” when I prepare a tax return for EIC. And that if I don’t make sure of stuff–that I (me, Jan) will have to pay $500 if I haven’t looked into your situation closely enough for the IRS.

    Now Sasha, you seem like a really nice person, and if you say your fiance’ is the father of your child, I believe you. But I’m not willing to pay a $500 fine just because I “think you’re honest”. Because that’s what the IRS will hit me with.

    So–you’ve got a problem there. Now if you’ve lived with your fiance’ for the entire year and you’ve had no income (or less than $3700) I have no problem letting him claim you. It’s the baby and the EIC that has me worried.

    I recommend adding the father to the birth certificate. You’ll need to file paperwork with your state. You’ll probably need to have some documents notarized and things like that. (Different states will have different rules.) Now, if you’re married, there won’t be any problem with him claiming your child–but as long as you’re not married, he should be on the birth certificate if he wants to claim he is the father.

  49. Dorothy on Sun, 6th Jan 2013 1:02 pm
  50. Can my boyfriend clam my 2 year daughter? See he been there since day one she was born and have always buy her everything food, cloths,diapers and watever else she needs. Her father have just seen her like 3 times since she was born and never gave me child support or not gave me anything for her. Now i ask again can he clam her?

  51. Admin Roberg on Sun, 6th Jan 2013 9:15 pm
  52. Dorothy,

  53. MikeG on Mon, 7th Jan 2013 11:30 pm
  54. Hi.. I have 2 boys they don’t live with me but I do pay child support but one boy lives with my ex girlfriend and my other boy lives with her grandma. I had recently asked her if I could claim them this year? and she said no because she can find one other person to claim her and both boys. She hasn’t work much last year she is supported by her girlfriend. So can her girlfriend claim her and the boys or I have no say so in anything? As far as my other son that lives with her grandma will she be able to claim him. Please help I need some answers

  55. Admin Roberg on Tue, 8th Jan 2013 9:24 pm
  56. Hi Mike G–
    Your girlfriend needs to know that she can’t have her girlfriend claim her kids for EIC. Now you can’t get EIC either, but your girlfriend could give you the exemptions and child tax credit if she signs the form 8332.

    The child that lives with the grandma could probably be claimed by the grandma for EIC and the exemption and the child tax credit.

    The EITC assistant has questionaires to help you determine if you qualify for EIC:–It%E2%80%99s-easier-than-ever-to-find-out-if-you-qualify-for-EITC

    You won’t, but you might want to share the information with your ex. She can’t just hand over claiming her kids to anybody. She can hand over the exemption to you, because you’re the father. Not to anybody else. Am I making sense to you?

  57. MikeG on Tue, 8th Jan 2013 10:38 pm
  58. yes thank you for your help

  59. Mariw on Fri, 18th Jan 2013 9:00 pm
  60. Hello,
    I wanted to know if my boyfriend can claim my 5 year old daughter? We have been living with him for a year + and i am not working at all.. hes been the 1 supporting us. And my daughters biological dad cannot claim her.. he doesnt work and hes not in her life.. so can my boyfriend claim my daughter?

  61. Jan Roberg on Sat, 19th Jan 2013 9:02 pm
  62. Hi Mariw,
    So you have absolutely no income at all? Your ex is completely out of the picture? And your boyfriend has lived with you all year and has basically been supporting both you and your daughter, right?

    In this case he may claim your child for the exemption only. She is what is called his “qualifying relative” not his “qualifying child”. He gets no EIC, not Child tax credit.

    Here’s a questionaire to help you determine if he can claim her for the exemption:

  63. Ben on Mon, 4th Feb 2013 5:46 am
  64. I have a fiance and have lived with her since may 2010. We have a child together that I have paternity documents verifying I am the father. She also has another son that is not mine. This past tax season I claimed both boys and was audited by the irs. I sent documentation of the paternity and paperwork from courts and schools showing residency. They have penalized me for almost nine thou. I am the only income in the home. I have documents stating the courts have placed her son in our shared care. I am preparing to file taxes again and need to know how to legally manage this situation.

  65. mary on Mon, 4th Feb 2013 7:24 pm
  66. Hi Im getting married in march of this year I’m a stay at home mom, my fiance has supported me and my daughter 100% this past year. My daughter biological father has never claimed her and hasn’t been in her life. This is my first year being a stay at home mom and was wondering if my soon to be husband can fully claim me and her after march? My daughter and I have lived with him for 6 years and he has raised and financially supports her. I usually get the EIC for her but since I have no income this year can he get it for claiming both of us? Should we wait til after march when we are married to file or does it not matter?? Thank you for any help!

  67. Jan Roberg on Tue, 5th Feb 2013 7:39 pm
  68. Hi Ben,
    The court document lists you by name? Not just your fiance but you, Ben, by name? That’s what you need. That would make your fiance’s son your foster child. Then you can claim him for EIC. If the document does not list you, Ben, by name as the boy’s foster parent–then you cannot claim him for EIC.
    Also, what date does the document make you the foster parent? If it just happened this week–well then you can’t claim EIC for last year.

  69. Jan Roberg on Tue, 5th Feb 2013 8:51 pm
  70. Hi Mary,
    Your fiance can’t claim your daughter for EIC until after you are married. Sorry.

  71. Suheil28 on Wed, 6th Feb 2013 8:46 am
  72. My fiance claim my kids as stepsons but we are no married. Now we need to proof that theyre related and honestly i didnt know he cant claim them as stepsons. Thanks God I found answers here! So he recived a refund but obviosly not eic. He is ready to amend and take them off so i can claim them… Do i have to wait until the Irs process his amend return so i can file mine? I dont want trouble it was amistake that we are going to fix

  73. Jan Roberg on Sun, 10th Feb 2013 5:39 pm
  74. Hi Suheil28,
    Thank you for sharing your story. Real life examples are so much better than anything I say.
    Wait until your fiance’s return is processed before you file your tax return. Your return is going to be delayed because of the problem but eventually you should be able to claim your kids.

  75. trisha on Fri, 15th Feb 2013 5:38 pm
  76. I need help. i got married June 24th 2012. He lived with me since April of 2011. I have not worked I a on Disability but my husband works. We were not married for 6 months in 2012. We did our taxes and he claimed both kids bc he supported both of them. we got a letter saying to prove my husband and my children were in the same household, but we did not claim me. i have the letters from schools and doctors saying they have lived together. but now im confused can u please help me what to do.

  77. Tiffany on Thu, 21st Feb 2013 1:51 pm
  78. What if the children lives with the boyfriend and you? You didn’t claim them because you didn’t have an income to support them and he did. Would you both still be in trouble for the boyfriend claiming them.? Considering he supported them all year long.

  79. Jan Roberg on Thu, 21st Feb 2013 7:39 pm
  80. Hi Trisha,
    You win! You’re married to him! That makes your husband the legal step-father of your children.
    But here’s where you messed up–he didn’t claim you? why not? You should have filed as married filing jointly. The only other legal option is married filing separately and you can’t get EIC for that. So, married filing jointly it is. (Really important–MFJ.)
    Now, you will submit a copy of your marriage license as part of your proof. Also, the kids birth certificates showing you are the mom.
    You Trisha have a winning case. You just need to file as married–that’s your solution.

  81. Jan Roberg on Sun, 3rd Mar 2013 4:15 pm
  82. Tiffany,
    No your boyfriend can’t claim EIC. Yes, you’ll get in trouble.

  83. Julia on Mon, 4th Mar 2013 3:27 pm
  84. I have lived with my boyfriend for 16 months (in WA state). We have a four month old together. I also have two children from a previous marriage who live with us full time. Their father has no income and is not in their life. I made $3000 last year. My boyfriend financially supports all of us. He has been separated from his wife for three years but is still legally married. Can my boyfriend claim me as a dependent? Are my children from my previous marriage my boyfriend’s “qualifying relatives”?

  85. Jan Roberg on Sun, 10th Mar 2013 4:10 pm
  86. Hi Julia,
    Your boyfriend is married to somebody else. Normally, that would force him to file as married filing separate–but because the two of you have a child together, he may be able to claim head of household because of that child. That would qualify him for EIC if his income is low enough.

    Since your income is under $3800, and you have lived with your boyfriend for the entire tax year, he could also claim you as a dependent. “Other” would be the category.

    It may be possible for your boyfriend to claim your children as “qualifying relatives”–meaning he would only get the exemption–no EIC, no child tax credit.

    You might want to play with who claims what. You could claim EIC but not head of household. But if you claim EIC–you cannot be his dependent. I’d run the numbers a few different ways to see what makes the most sense. I’m assuming that you should be treated as a family–all working together for the common good of the family unit.

  87. nblanco on Wed, 3rd Apr 2013 10:06 am
  88. My husband and I got married last year (2012). For 2012 I have income from a foreign country (PR) and I have a son (technically his step-son). I wanted to know if my husband could file married filing separately (because I have foreign income and I think it could be a mess) and claim my son as a qualyfying child and get the Child tax credit. Please help! I want him to file correctly but getting all benefits.

  89. Jan Roberg on Sun, 14th Jul 2013 8:39 pm
  90. Hi nblanco,
    Your husband my claim your son (his step son) on his married filing separate tax return. That’s perfectly legal.

    Now, since you have foreign income, remember there’s a credit for taxes paid to a foreign country.

    Foreign income isn’t necessarily that bad. It might be worth your while to file jointly. But if you’re really worried about it, it’s fine to let your new husband claim your child. The key here is that you are married, that give him a lot of legal rights that a “boy friend” wouldn’t have.

  91. Shar on Thu, 16th Jan 2014 9:57 pm
  92. Jan,

    My son and his wife are separated and have filed for a divorce. They have been living apart for all of 2013 and his wife lives with a boyfriend. The boyfriend is planning on claiming children on his income taxes this for 2013. The mother does have temporary physical and legal custody of the children. The boyfriend is not the father of any of them. My son pays his child support and sees the children every other weekend. Can the boyfriend legally claim the children without the approval of their father?

  93. Jan Roberg on Fri, 17th Jan 2014 9:11 am
  94. Hi Shar,
    Good question. I’m assuming that you’re not talking about EIC because the whole post above is about how the boyfriend cannot claim EIC at all. No way, no how.

    So then the question becomes, can the boyfriend legally claim the children as dependents for the dependency exemption? And it would only be the dependency exemption — nothing else. The answer would be “maybe” if he met all the other criteria, which he probably doesn’t. But more importantly, it would most likely be a stupid waste of tax credits.

    Since the children don’t live with your son, he can’t claim EIC as married filing separately, remember he’s still married to the mother.

    If she has no income, (and they’re both straight up moneywise), they could still file jointly and possibly claim EIC and split the refund between them.

    If things are too ugly, he may be able to file as married filing separately and claim the dependency exemption for the kids. If they want to file separately but are on somewhat speaking terms, then have options of working out how the kids are claimed. There’s options if they can talk to each other.

    The one option not on the table is letting the boyfriend claim the kids for EIC–that’s illegal. So if the wife wants to go that route, then your son can just file as Married filing separate and claim the kids as dependents and he doesn’t really need to ask permission. If the boyfriend files second, his return is automatically rejected. If the boyfriend files first–it’s gonna get flagged by the IRS and he’ll have to explain how he thinks he can claim those kids. (Which he’ll lose.)

    Note–this is important: even if your son were to say “Hey, wife’s boyfriend, I’m going to let you claim my kids on your tax return for EIC,” it would be illegal. Just want to make sure you understand that.

  95. ann on Thu, 30th Jan 2014 1:03 pm
  96. I have a question my brother has been reporting a child that is not his for 5 yrs and not reporting the mother cause she is illegal..know the irs came back wants money or show prof..he got an attorney and they told him to get married he did.but my question is will he have to repay that money back even thou he got married..

  97. Jan Roberg on Thu, 30th Jan 2014 9:10 pm
  98. Hi Ann,
    I honestly don’t know. In the future, if your brother divorced his wife, he would still be considered the step father, so he would still have a claim. But going backwards, I’m just not sure. I would say he’d still have to repay the money–but I haven’t been able to prove it. (You don’t want me to be able to prove it.) Good luck.
    Please post what happens with your brother’s case so we know. I suspect that different IRS agents would treat the case differently. If the agent on the case goes against your brother, I’d ask for an appeal–it’s worth a shot getting a different response if you need one.

  99. Molly on Wed, 12th Feb 2014 9:59 am
  100. Ok so I did my taxes online as well as my fiance’s. I didn’t realize putting in my daughters daycare credit on mine would mean I was claiming her. He always claims her with me being in school still. So of course it is now rejecting his tax return. I have mailed an amendment form but it could take 8-12 for it to be fixed having her off my taxes. Will he have to wait that long to file his taxes due to my mistake?

  101. Jan Roberg on Wed, 12th Feb 2014 8:49 pm
  102. 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.

  103. Samantha on Fri, 14th Feb 2014 7:52 am
  104. 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

  105. Samantha on Fri, 14th Feb 2014 7:59 am
  106. 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.

  107. Jan Roberg on Sat, 15th Feb 2014 7:01 pm
  108. 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.

  109. Betty01 on Thu, 15th May 2014 10:14 am
  110. 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?

  111. Jan Roberg on Sat, 31st May 2014 7:45 am
  112. 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.

  113. Elisha on Thu, 25th Sep 2014 8:19 am
  114. 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!!

  115. Jan Roberg on Sun, 28th Sep 2014 8:16 am
  116. 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.


  117. victor on Mon, 19th Jan 2015 1:42 pm
  118. 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

  119. christina on Thu, 22nd Jan 2015 3:09 pm
  120. 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

  121. Jan Roberg on Thu, 22nd Jan 2015 7:12 pm
  122. Hi Victor,
    Your ex’s boyfriend cannot claim your kids on his tax return.

  123. Jan Roberg on Thu, 22nd Jan 2015 8:37 pm
  124. 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.

  125. joe on Sat, 24th Jan 2015 2:42 am
  126. 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?

  127. Jan Roberg on Sun, 25th Jan 2015 9:41 am
  128. 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.

  129. Amanda on Wed, 4th Feb 2015 4:32 pm
  130. 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

  131. Jennifer on Thu, 5th Feb 2015 2:09 pm
  132. 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?

  133. Andrea on Thu, 5th Feb 2015 9:31 pm
  134. 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

  135. Brigitte on Fri, 6th Feb 2015 12:50 am
  136. 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

  137. Jan Roberg on Sun, 8th Feb 2015 4:11 pm
  138. Hi Amanda,
    Do you and your boyfriend and your two children live with your mother? If not, then no.

  139. Jan Roberg on Sun, 8th Feb 2015 4:12 pm
  140. Hi Jennifer,
    No she can’t.

  141. Jan Roberg on Sun, 8th Feb 2015 4:13 pm
  142. Hi Andrea,
    She can’t give her child’s credit to her boyfriend.

  143. Jan Roberg on Sun, 8th Feb 2015 4:14 pm
  144. Hi Brigitte,
    I answered your questions on another page.

  145. chris on Mon, 16th Feb 2015 1:17 pm
  146. 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?

  147. confused? on Wed, 18th Feb 2015 9:52 pm
  148. 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?

  149. josh on Wed, 25th Feb 2015 9:34 am
  150. 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

  151. Ray on Thu, 26th Feb 2015 9:57 pm
  152. 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?

  153. scott on Wed, 11th Mar 2015 10:57 am
  154. 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?

  155. javier on Sat, 18th Apr 2015 9:42 am
  156. 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

  157. Jan Roberg on Sun, 24th May 2015 4:09 pm
  158. Dear Confused,
    No, your boyfriend cannot claim your youngest child on his tax return.

  159. Jan Roberg on Sun, 24th May 2015 4:11 pm
  160. 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.

  161. Jan Roberg on Sun, 24th May 2015 4:15 pm
  162. 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:

  163. Jan Roberg on Sun, 24th May 2015 4:24 pm
  164. 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.

  165. Jan Roberg on Sun, 24th May 2015 4:34 pm
  166. 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.

  167. Katrina T on Sat, 13th Jun 2015 11:49 pm
  168. 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?

  169. Jan Roberg on Sun, 14th Jun 2015 8:45 am
  170. 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.

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