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
Hi Diane,
Doesn’t it seem that families can sometimes be a little crazy over the holidays? So you’ve got relatives threatening your daughter? Oh isn’t that pleasant? We’ll address that in a minute, but first let me go back to your first question: does it count as support if you paid your daughter’s rent. Yes, it does. But remember, she needs to live under your roof for over half the year. (Plus, I think there’s no doubt as to your supporting your daughter. If you’re looking at those worksheets, in your case it pretty much seems like a no brainer–you support her.)
Now, about amending your return. Like I’ve said before, you’re in the right–I’m not arguing that. Here’s the other side–they’re threatening your daughter! Even if you’d like to erase these people from your life–your daughter is still involved with the baby’s dad. They’re not going away. Financially–let’s say they got and extra $5,000 for claiming your grandson. (Which I’m guess they already spent.) Now they will have to pay all of that back, plus 25% penalty, plus interest, and possibly another 20%. They could be looking at a pay back of $7500, so they’re sweating bullets.
How much will you lose if you amend your return? I’m guessing you’re in the 25% tax bracket. With an exemption of 3600 the tax on that would be 900, plus another $1000 for the child tax credit. Add in penalties and interest and you’re still coming in under $2500. (It’s also quite possible that you could get the penalties waived because I’m guessing you’ve never had a tax penalty in your life.)
There’s right and wrong and there’s also “let’s make a deal”. While I’m a big advocate of walking the straight and narrow, it might be in your family’s best interests to “make a deal” for the sake of your daughter and grandson. You have to really assess the situation there. There is no shame in amending a tax return. It won’t come back to haunt you later. And when you’re talking to people, remember, it’s what the IRS recommended in the first place.
Getting the ducks and beavers in a row. (I’m going to have to go to Oregon.) I’d line up as much proof as possible. Go ahead and take your letter, a copy of your tax return, and your proof with you to the local IRS office and sit down face to face and talk with someone there. Let that person decide what to send in. Bring your grandson with you and hold him on your lap while you do this.
I know, it sounds a little theatrical, but the whole possession is 9/10ths of the law is a pretty persuasive argument.
The one thing that you are not going to get out of this no matter what is to get it all settled quickly and be done. Ain’t gonna happen. You’re looking at a good 16 weeks, maybe even more. If this gets settled any faster than that you should be jumping up and down for joy. Just to give you the timeline.
If you do chose to amend your return, (okay, this is my nasty side, I just can’t help it) you need to determine what’s in it for you. You know they’re in trouble for about $7500, maybe even more. What are they going to do for you (and more importantly the baby) to make you stop? (I wouldn’t recommend babysitting, they’re probably not a good influence.) 1. They have to stop threatening your daughter. 2. They should pay you the $2500 that you’ll be out if you amend the return. 3. They can never claim the baby again, ever.
Good luck. I know this isn’t easy. Most importantly, keep safe.
Hi Jan,
I so appreciate your posts. This is making me crazy. One more question. For part of the tax year 2010 my daughter had an apartment, but no income. Her dad and I paid her expenses. We have checks for the rent payments. For the months she was in the apartment, if we paid, does that count in our part of the year for support.? If she lives elsewhere and we pay, does that mean she is not really living with us? She was a part time student, only for a term.
There is no relationship with the other grand mother, and the threats to my daughter make this even more messy. She was told she better beg me to ammend my return, or else.
Unfortunately, that is the wrong thing to do, and I don’t lie.
Will an affidavit from a non family member help? I work part time for an attorney, and one of my good friends is an attorney. They are good community members and their profession frowns on fraud.
I woud like my ducks, (and beavers…Oregon joke) and paper, and letters in a row….and be done with this. I would even like to deliver it to our local office, but you nicely said, “do not give anything you have not been asked for.”… Kind of like not answering a question, in court, that has not been asked….. Have I said this is so wrong… And thanks again for your information. I am odd woman out on this, and several people are mad at me….. Diane
Diane–Girl, you are standing on my soapbox! The Earned Income Credit is for people who need/deserve it. I hate it when people use it illegally–and innocent babies’ social security numbers are auctioned off like prizes. (I had a client whose child’s social security number was stolen at the hospital. We never would have figured that one out but the police uncovered the scam and arrested the folks. My client wasn’t the only victim.)
Okay, I’m off of my soapbox. Here’s my advice–Do not amend your tax return under any circumstances. You are in the right, you did not make a mistake. It’s a pain in the behind for the IRS to pursue these things so if you back down, it makes their life easy. But you’re in the right so hold firm.
I would round up the proof now, because I’m pretty sure that you’re going to need it. You can send it in now, but keep copies because I’d bet $5 that you’ll get a letter after you’ve already sent it in to send the proof. (I’ve got a little experience with that.) I think doctor’s records are good, especially if you went to the doctor with the baby.
I do not know about being able to change the baby’s social security number. Besides, the child’s father is still in the picture and he did benefit from his parent’s claiming the boy so I’m thinking the new number wouldn’t really be safe either. I’d check with social security though, they’re the ones who can give you the right answer.
The bit about being disqualified for EIC–your daughter did not illegally claim EIC, the baby’s other grandparents did. They will not be able to claim EIC, your daughter should be fine for claiming EIC in the future.
Unfortunately, this will not all be worked out before 2011 tax returns are filed. The advice about filing first, sadly, is about the best I can offer. But I hate that advice because responsible people wait and get all of their documents together before they file.
You know that you are in the right. 2010 will be difficult to prove, but 2011 you’re solid. You may want to remind the other grandparents that you intend to file and claim your grandson for 2011. And the penalties involved with fraudulent EIC returns will be: at least 25% for late payment of taxes for the money they’ll have to pay back to the IRS, plus interest, and a possible 20% penalty for fraud. Maybe they don’t know all that and you would be doing them a favor explaining it. Just a thought, you know, ounce of prevention.
And even though I think proving the 2010 case is difficult, what do the other grandparents have? Because this whole thing will take time and bottom line, when you stand tall and don’t back down, then they’ll be required to come up with their proof–and I’m betting they don’t have any.
Hi Jan,
Yes, I got a letter asking if I made a mistake, and to be sure I can claim a dependent or qualifying child. The letter lists the tax rules, including the “living with you” requirement. It says I need to ammend my return if I have made a mistake. After receiving the letter, I called them. I asked how I could prove this, as I was intending on claiming the same people this year. They told me on the phone about school records, etc. They also said to file as soon as possible before the other grandparent.. I will try and file as early as possible, but I want this taken care of, and hopefully before the EIC is received 2 years in a row. It is my understanding that if you incorrectly claim the EIC,all parties can be disqualified for 10 years. At some point in the future, my daughter may be able to use the credit.
Because my daughter is receiving gov benefits, there are no hospital bills.
Because living with me was a big issue between the parents, there may be note of it in the pediatrians notes. Perhaps a Dr letter would be possible, My concern is, the longer we wait, the harder it is to get proof. If the baby was born mid Dec 2010, and was in the hospital about 4 days, we are talking about proof for 10 days of his life. The main issue is he NEVER lived with the other grandparent, or ever even visited the other grandparent during the 10 days. I guess I resent thousands of $ benefiting an adult that does not qualify. The credit was intended for the benefit of the child.
So, should I wait until the IRS asks for proof in writing? If I give them too much too soon, what is the disadvantage?
Is it possible to get a social security card number changed? A non confrontational solution would be great. After all of the support I provide, I would hate to have to hire an attorney too. Thanks
Diane
Hi Diane,
You won’t get that 11 page form because you didn’t claim EIC, only the exemption–that’s actually a good thing. Rule one, is never send the IRS something they didn’t ask you for. Forgive me for making the assumption you received the full 11 page letter.
Here’s my question to you: Are they only asking if you made a mistake? Or are they asking for proof. If they are just asking if you make a mistake, just write back and say, “No, claiming my grandson was not a mistake. He lived with me and his mother for his entire life in 2010.” Or something to that effect.
If the IRS is asking for proof, then I’d get a letter from the counselor. I just went back and reread your letter, it sounds like they are asking for proof. Write your statement and submit the counselor’s letter. If you have receipts form paying any of the hospital bills that would also be good (I didn’t think of that one before.)
Make sure the you write your name and social security number on every page that you send to the IRS. Also, keep a copy of what you send to them. They are notorious for losing papers. (I’m not being rude, if you talk to them, they’ll admit it.)
Good luck.
Hello again,
The money received for the EIC was not provided for the child. I believe the maximum credit was claimed, and some money was given to the childs father, but nothing for the benefit of the child. My husband and I have been providing housing for the parents(and child), and financial help, for several years.
The other grandparent evidently “split” the EIC money with her son……and kept the rest.
I claimed my daughter and grandson in 2010 and intend to do so in 2011.
The only part I am a bit uncertain about is getting paper work for the 14 days…..I think we can get a letter from my daughters counselor. Is any non related person an option for a letter stating they knew the baby (and daughter) lived with us? Thanks for the info….. Also, is there anywhere I can see the 11 page audit form?
I have only received a letter from the IRS, no forms to complete.
Hi Diane,
Thank you for your question–you hit a whole bunch of issues with one situation. The thing is–it’s not that unusual to have multiple little issues to settle–it’s kind of what makes us unique, right? Anyway, let’s take care of you.
First, you’re right, your grandson is a bit too young for school (even though, as your grandson, I’m guessing he’s amazingly bright and handsome too!) The school question is a standard form letter and obviously, you won’t have school records for him. What you might possibly have could be: hospital record (from his birth) or a baptism record from church, or insurance record for the baby showing your address, or pretty much anything saying the baby lived with you. I used to work on those audits when I was at a big box tax company and we got the IRS to accept a letter from some neighbors saying that the child lived in a certain house. (They will not accept letters from a parent or relative-I guarantee that, a letter would have to be from a non-relative and that’s an absolute last ditch effort.) A letter from your church, if you have one, is acceptable. You don’t need to have all of these sources, I’m just trying to give you possible ideas of ways to prove the child lived with you.
You may have heard about the rule that a child has to live with you for over 6 months in order to claim him. That’s true, except for when the child is not yet six months old. The baby can be born on December 31 and can still be claimed as a dependent.
How can a tax prep office claim EIC for a grandparent if the child never lived there? Technically that’s illegal and there used to be a $100 fine on the tax preparer for each offense. The government has raised the fine to $500 this year. That said, there are some preparers that will still break the law (don’t get me on my soapbox.) There are some preparers that don’t mean to break the law, they’re just stupid (sorry, but true.) Sometimes, the preparer is not at fault, some clients lie. But in this case, to be fair, it could just be one of those–Holy Cow, what in the heck should we do?
To be honest, the way I read your case, clearly you are the one who should be claiming the grandchild. But to be fair, I’m betting that the case presented to the other tax preparer sounded like the other grandparents should. That’s why it’s really important to argue your case clearly and effectively. You should go with the assumption that the other grandparents made a decent case to their preparer (although I’m guessing they really didn’t.)
And I think you’ve got enough for your case. That 14 days is harder to prove, but you clearly can prove 20111 and that makes your 2010 case stronger.
Your first job is to finish filling out the IRS paperwork and get it back to them. Proving your claim now, helps you in the future.
You do not have to file first. It makes it easier to claim your grandson because you won’t get rejected when you e-file, but if you get rejected, you do the same thing as you did this year and file a paper return. Eventually, the IRS will tell the othe grandparents, “No.” If they continue to claim your grandson when they shouldn’t, the IRS will eventually flag their social security numbers for EIC fraud and they won’t be allowed to claim EIC for any child. (I wish I could wave my magic tax wand and just make it happen for you but it doesn’t work like that.)
Bottom line: I think you have a winning case. It’s not going to be the easiest, but being right is 90% of the battle.
Here’s one more thing to think about: who is being harmed, who is being helped? Clearly, you are being harmed by the other grandparents claiming the boy. That said, are they using the money to help the child? Is there good coming from there? I’m not getting that feeling from your letter, but I do believe it’s worth asking. I definitely think that you should be claiming the child for this year. But, depending upon how much damage can be done to the other grandparents if you win the case–if there is any family bond or friendship, it could be in your best interests to talk it out and–I hate to say make a deal, that seems tacky but that’s pretty much what I mean. If you lose, how badly will you hurt–if they lose, how badly will they hurt? How will this hurt your grandchild? It’s just something to think about.
Hi. I have a grandparent question. My daughter and grandson live with me. The other grandparent has claimed an EIC on the baby, but he has never lived there.
Because the other grandparent did her taxes, at a tax preparer office, and first, my return was rejected. I mailed my return and recently have received a letter from the IRS asking if I made a mistake.
Because this little boy was born in mid Dec 2009, half of his year is only a few days. My daughter (no income) did have an apartment at that time, but was unemployed and I paid for the rent. Once the baby was born, she stayed at my house most of the 14 nights. She continues to live with me, a year later….
Not sure if it matters, but the child’s father, her boyfriend is married to someone else, and has worked very little in the recent few years. He, too, is at my house most of the time. But, he is not related to me…..Neither parent will have taxable income or returns for 2010.
How do I show the IRS that the baby and my daughter have lived nd continue to live with me? They requested school records, but he is a bit young for school…
What information is useful to prove they lived here? How can a tax prep office prepare a return for an EIC if the child never lived with the other grandparent?
Suggestions? It is tax time again, and trying to file first is hard to do. I do not qualify for the EIC, but intend to claim my grandson and daughter again.
Thanks, Diane
Hi Leo,
Thanks for your question. When all is said and done, the bottom line is that you are the one who has custody of your son and therefore you have the right to claim him on your tax return.
Your divorce decree doesn’t say anything about who gets to claim the children now so you get the full right to claim–exemption, child tax credit, head of household and EIC (if your income qualifes).
Now I’m not a lawyer and I’m not allowed to give legal advice so I can’t tell you about your court order. That said, if the court does grant your ex the right to claim your son for tax purposes, that only lets her claim the exemption and child tax credit–you get to hang onto the head of household status and EIC.
So you have the right to claim your son, but your other question–will the IRS garnish it? They can’t garnish it, but there’s a possibility that things can get screwed up if your ex also claims your son. If she files first and you try to file, then your tax return will be rejected when you go to efile. (It’s a pain in the behind.) So you’re thinking you’re getting a nice big refund and then–whammo–nothing.
Now what you’ll do is go ahead and file your return by mail–the IRS will send letters, all the stuff I wrote about above, but in the end, you are the custodial parent and you are on the side of right, you’ll win. Hopefully, you won’t have a problem, but I just thought I should warn you of the worst case scenario. Good luck.
My ex and I have been divorced since Sept., 05. She was granted physical custody of our 2 minors and we have joint legal custody of them. Although she has physical custody, our oldest who is 17 this year has been living with me for the WHOLE year and I provide all the support for him minus his cell phone bill. I have been court ordered to pay child support, but have fallen a little over a year behind on payments due to this change, as well as other factors. I want to claim my son on my taxes for this coming year. Do I have the right to do so and/or will the IRS garnish it? The court order doesn’t state who gets to claim who each year, although it did grant her the right to claim them the one year following the proceedings….
I’d like to add that we have a court date coming up next year to hopefully modify the current court order and shes requesting to claim both kids for ALL tax purposes. Is that possible now that my son is living with me???
Thank you!
This message is for a different Christina who sent me an email, but I couldn’t respond back–
Can your Mom claim you and your kids instead of your ex? That’s a really good question and it’s important too so I’m posting it here.
In this particular case, Christina has custody of the kids and they all live with Christina’s mom-who I’m going to refer to as Grandma.
Since Grandma is supporting Christina and the kids while Christina is in school, Grandma can claim Head of Household–if Christina does not claim the kids. Christina cannot claim Head of Household if Grandma is supporting her.
Now, if Christina has income, she and Grandma tie for the right to claim the kids for the dependent exemption, child tax credit, and EIC. Because Christina is the Mom, the tie goes to her (kind of like baseball, at first base tie goes to the runner) –but if Christina chooses not to claim her kids, then Grandma has the right to claim them.
This is important because Christina is making a choice. And she can choose to not claim her kids if it’s in their best interests. What I would do in a situation like this (meaning a loving family working together for what’s best for the whole family) is to sit down together and do both tax returns at the same time and see what’s going to give you the best return depending upon how much income each person has. Work together for the good of the whole family–totally cool, totally legal.
In families that aren’t like Christina’s (and if you have one of “those” type of relatives, you know what I’m sayin’) you can’t do that. That’s why the IRS has all these rules and tie breakers and stuff like that– so when push comes to shove people know exactly what their rights are.
I almost forgot something–Christina’s in school. Depending upon her age and income, it’s possible that Grandma could even claim Christina as a dependent as well. I don’t have enough information for a positive answer, but if Christina meets all the requirements, Grandma could even claim Christina as a child for EIC purposes.
Hi Sandra,
I’m sorry but in your case it sounds like your ex does get to claim your youngest daughter. The catch here is that your divorce decree has no conditions–that’s the big point there. Mind you–that’s what I’m seeing from your question there, no conditions. But–if I were you, I would double check the decree for any type of condition, but I’m thinking there aren’t any from what you’re saying.
That said, even though your ex gets to claim your youngest child, you still get to claim her for EIC and head of household status (if you qualify). That will help a bit with the tax that you’ll wind up having to pay back. You only lose the exemption and the child tax credit–the child tax credit is worth $1000. The exemption is worth your tax rate times $3650–so if you’re in the 15% tax bracket then that would cost you another $548. (More if you’re in a higher tax bracket.)
Additionally, the IRS likes to assess late payment penalties, plus interest. Ouch! They will never forgive the interest–just warning you up front. But, you may be able to have them waive the penalties if you’ve never had an IRS problem before. You have to ask them to do this–you must say, “I would like you to waive the penalty.” It’s worth a try, if you don’t ask you don’t get. The penalty will be about 25% so it’s important to ask them to waive it. Good luck.
I had custody of both children. The oldest is now 22.
Thanks for your help.
My ex and I were divorced in 1998. He has not paid child support in five years. I have custody of the youngest. In the decree it state he can claim my youngest and I can claim the oldest. It doesn’t state anything about if he doesn’t pay child support. “For the tax year 1997 and for each tax year thereafter until the children are no longer eligible to be claimed as dependents under the Internal Revenue Code” DP shal claim KP as a tax exemption on his retern; and SP shall claim DPJ as a tax exemption on her return.” I finally called him last year and told him I was going to claim my youngest. He stated that he was following the decree and claiming her. We both did and now I have a letter from the IRS. Will I be in charged because the decree states he can claim her.
Hi Jennifer,
That’s a really good question. You can’t void an old claim–for example–let’s say you signed the form for last year, it’s done and over so you can’t go back. But–you can revoke the 8332 for future years – in case you signed the part that gave your ex persmission for all future years. Here’s the form: http://www.irs.gov/pub/irs-pdf/f8332.pdf It’s the same 8332 form, but if you look at Part III you fill that out and attach it to your tax return.
Now, just to be absolutely sure about one thing–even though you released the exemption for your ex to claim your youngest–you still are allowed to use your youngest for EIC purposes (if you qualify for that tax credit.) A signed 8332 won’t let him claim EIC so if you didn’t get to claim 2 children for EIC purposes, you can go back and amend for that.
Good luck.
My Ex scared me into filling out a 8332 for our youngest son. Is there a way to void that? We are court ordered to each claim one child, I have custosdy of both full time(he doesn’t choice to see them) after reading the above I see that the court order is not important to the IRS. I feel that since I support both full time I should be able to claim both.
Ji Joanna,
I just got off the phone with the IRS because I wanted to make absolutely sure that I was right about this, and I am: your divorce decree states that your ex-husband may claim your three youngest kids if he is currrent on the child support. The IRS rules say that a divorce decree written after 1984 and before 2009 (that fits your decree) must have a statement that says the “noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.”
In plain English, your divorce decree has conditions, the IRS can’t prove he paid support so the IRS does not recognize your ex-husband’s right to claim the kids. Your tax person did give you good advice!
It sounds like the IRS is just investigating the claim right now. Let them investigate. Do not send them anything unless they specifically ask you for something. It sounds to me like your ex is the one who needs to be sending things in. If you are asked to send them something, make sure you write your social security number and tax year on every single piece of paper you send them.
In the meantime, breathe easy and have fun with the kids. It’s that time of year so here’s a website for you: http://www.noradsanta.org/en/
I have primary custody of my 5 children with my ex husband. Our divorce was fnalized in June of 2008 and it stipulated that I would claim the two oldest children and he would claim the youngest three from 2008 and every year thereafter as long as he was current on child support. He does not have visitiation except for two weeks out of the summer that he has only used once since 2008. I do not remember signing a form 8332 and every year since 2009 per the advice of my tax preparer I have claimed all 5 kids as dependants and for EIC since the children resided with me for 12 months out of the year. Every year I have submitted a paper copy of our return since it would reject for the childrens ssn being used. I just received a letter from the IRS stating that the youngest 3’s SSN had been used on other returns and they were doing a check to see if the numbers were correct or not. I know my ex husband has used their SSN numbers on returns for the last two years since I just talked to him about it. Is there anything I can or should do? He hasn’t been behind since 2008 (til now) and I want to make sure that the tax advice I received was correct: that I can claim them despite what the divorce decree states since I had them for 12 months and provided more than 50% of their support … I was told federal law trumps divorce decrees?
Hi Lauri,
Thanks for your post. You’ve got a different problem. (It seems like everybody has a slightly different twist.) Your issue is the 2001 divorce decree. You do not have to sign a form 8332 for your ex to claim your 12 year old. (He is supposed to attach copies of pages of the divorce decree and mail it in–but that never happens.)
That said, you have custody. It won’t get you the dependency exemption or the child tax credit, but if your income is low enough it will qualify you and your husband for the Earned Income Credit. (Because you are married, the Head of Household filing status you could have claimed is irrelevant.)
If your husband’s income is too high for you to qualify for an earned income credit (married claiming 1 child you’d need to make over $38,000 combined), then there’s really nothing you can do that would help you tax wise.
But—and this you’ll have to ask your lawyer about because I’m a tax person, not a lawyer–your divorce decree says that you have to make over $18,000 to be able to claim your child every other year on your tax return. Well, you’re married. Married people have joint income. In my book so that might qualify you to claim the exemption every other year. But do check with your attorney on that because the states have different laws and that’s more of a “legal” issue than a “tax” issue.
Of course, if you and your husband’s combined income is less than $18,000–well then you’re looking at claiming EIC..
So– you can go back and amend your 2008, 2009, and 2010 tax returns to claim your 12 year old daughter for the Earned Income Credit. And yes, it will be nasty and there will be audit letters, but the IRS rules are on your side on that. (See my post about splitting exemptions.)
I wasn’t sure about your oldest daughter and how she figured into the equation. Is she the child of your ex? Basically, the same rules will apply about claiming her as well (assuming she’s still young enough to claim.)
One last thing, if you are thinking about refiling, you’ll want to run the numbers to see if it’s worth the headache before you do it. If you’re only getting $500 or something, that could be more trouble than it’s worth. On the other hand, if you’re looking at thousands of dollars, well of course that makes an important differnce. It’s probably worth the money for you to hire someone to prepare the amendments for you. (I know a really good tax person in St. Louis!) Here’s a link to a website that can help you find an enrolled agent in your area: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx?Token=
I have primary custody of our 12 year old daughter and since our divorce in 2001 my X has claimed both the 12 year old and our oldest daughter. This is disturbing to me because he pays very little in child support and states that is his only responsibility so while my husband and I are constantly paying for the long list of things she needs he gets his taxes filed before ours because he has one W2 and my husband is self employeed so ours takes longer. He even agreed to let me claim them and instead claimed them himself!! Our divorce decree says I have to make over $18,000 yearly to claim them every other year but I am a full time student and my attorney says the amount was to say $3000. My daughter hardly even visits her father so she obviously lives with me most of the year. He even took both exemptions for the relief period (I’m sorry can’t remember what it was called) It’s like he is getting all of his child support back for the year! (We even decreased his child support one hundred dollars so he could help pay for braces and he exceeded the time limit, our child support was to go back up but never did!)
Hi Bill,
Thanks for posting. In your case, you’ve got 100% custody. You are the one with the exemption, you may allow your ex to claim the exemption for your daughter by filling out a form 8332. (You can get the form at the irs website: http://www.irs.gov/pub/irs-pdf/f8332.pdf) Giving her this form will let her claim your daughter for an exemption and for the child tax credit, you will hang on to the Head of Household filing status and the Earned Income Credit if you qualify for it.
You can do this legally by splitting your exemption, and here’s a link about doing that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
There are two things that are important to know: 1. When you release the exemption, only sign the release form for one tax year, don’t sign the part releasing it forever. You want to hold on to the privilege of releasing it again, not just allowing her to claim it every year. Also, 2. Don’t give away the EIC/head of household status. You have 100% custody so that’s your right. If you want to “gift” money to your ex, that’s much better than letting her claim your daughter for EIC and head of household.
Why not just let her claim she has custody so she gets EIC instead? For one thing, it’s illegal. Would you get caught? Probably not in this case, but if you did get caught then you could be dealing with fraud charges. But here’s the other reason you don’t want to give up your “custody” status. You’re a guy. Guys are 100 times more likely to be audited for EIC fraud than women. So even though you’re legit, because you’ve got 100 percent custody, you’re still more likely to get audited than a woman with 60% custody. What’s going to trigger that audit? If your daughter was claimed for EIC on your ex’s return this year, that could do it.
It always comes back to, What’s best for your daughter? In your case if helping out the mom is good for your daughter, then by all means let her claim the exemption and the child tax credit–Child Tax Credit is worth $1,000. If you feel you need to help the mom more than that, do it some other way than letting her claim the EIC. You need to protect your rights as the custodial parent.
Thanks for this info first!
I have 100% custody and we have joint legal. I have had this since before she was 1 and is about to be 9. My ex ( girlfriend, baby mama) asked to claim our daughter because she needs the money. I am 50/50 on this. My real question is if I let her claim our daughter, will that give her some kind of extra ammunition for her to try and claim custody of our daughter legally?
Hi Erica,
Thanks for your question. You brought up something really important that I don’t think I’ve addressed in this blog before: The IRS does not want to be the decider of who gets to claim your kids. I kind of think the FOC was doing a cop out there. In fairness to her though, I think it’s confusing for the courts too, the IRS rules and the court rules don’t always coincide. The IRS winds up deciding lots of cases, but they don’t want to–just sayin’.
But what does that mean for you? First–you have custody. Custody trumps all. (Yes, he gets them sometimes, but you’ve got the kids over half the year, you win.)
As the custodial parent, you will always, I repeat ALWAYS, be the one who can claim your children for the Earned Income Credit and for the Head of Household filing status. The is the right of the custodial parent (you).
You may, out of the goodness and kindness of your heart, release the exemption of one or more of your children to your ex so that he may have the benefit of the child tax credit and the exemption deduction. He will never, I repeat NEVER qualify for the Earned Income Credit using one of your children. He will not be able to claim Head of Household using one of your children as head of household.
The only way your ex husband could claim your kids to get EIC or Head of Household is if the children lived with him for more than 1/2 the year. For example: if you had perfectly even 50/50 custody, then you could share the kids that way.
But you don’t have even custody so the tax law stands with you.
Paying child support means nothing to the IRS. He could pay you a million dollars a year in child support but if the kids don’t actually live with him, then too bad.
So here’s your problem–he’s going to get his w2’s first and file and claim all three kids for everything and when you try to file your return will get rejected. If that happens, you’ve got my instructions above on what to do. But what you’re trying to do is a pre-emptive strike, get him before he gets you.
That sounds pretty childish, forgive me. But that is kind of what we’re trying to do. You have the tax law on your side, if you file a return claiming all three children, you will win the audit. But if he files first, even though you’re in the right, it will take you months to settle this issue–a good 16 weeks extra as opposed to getting your refund in 2 weeks or less. So you don’t really want to go that route.
This is where your negotiation skills need to come into play. 1. First you want to determine what’s best for the children, because the kids should always come first. It might help to get a tax local professional involved–what you’re talking about is splitting an exemption. Here’s a link to my post about doing that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
Don’t use a first year preparer, get someone with experience who has done this before.
2. Next you’re going to figure out just how much you lose be allowing your ex to claim the exemptions for your kids. If he gets one, what happens, if he gets 2, what happens, etc. Remember, you’re only going to give him an exemption, not the EIC.
3. When you’re ready, start the bargaining. If he wants you to complete the form 8332 to release the exemption, then he’s going to have to make nice and only claim what he’s allowed to. He it won’t, then you’ll have to let him know of your intentions to also file which will get him audited by the IRS AND since he will lose, not only will he have to pay back ALL of the refund, but he’ll also have to pay the fines, penalties, and interest payments associated with the refund. In addition to that, since the FOC said to go ahead and file the tax return, that means that the court is counting the tax refund as income to him, therefore it will raise his child support payments and he’ll have to go back to court again (pay his lawyer I guess) to get that lowered.
So, he can see it your way, or he can suffer the consequences.
Now, although things are nasty right now, he is the father of your children and you are relying on him to make time child support payments. If its at all possible, you’re really better off coming to a friendly solution. (Once again, what’s best for the kids.) But “friendly” is not roll over and play dead. But you can use your tax lady as an excuse. “I’m sorry honey, but the tax lady said I can’t let you claim the kids for EIC.” Take the heat off of yourself. You can put you and your ex on the same team “doing what’s right for the kids” (maybe not, but it’s worth a try.)
My point is, you may be more persuasive being “on the same side” than coming at him like a sledge hammer.
Bottom line: if it goes to an audit, you win. It’s just that going to audit is a pain in the behind so if you can prevent it, that’s your best deal. Good luck.
Here is my situation… My ex and I have been divorced for 3yrs and we have 3 kids together. We have joint custody with the kids living with me and him getting them every other weekend and 6 wks out of the summer (2wks on 2wks off) which was just determinded this Sept 2011. We just recently went to astablish child support which was put into effect as of Nov 2011 (which he has not paid yet). I told the FOC that I was claiming all 3 of our kids on the taxes since they do live with me, which in turn reduced the amount of CS he was going to be paying since I was taking the credit for the kids, and there was never anything put in the divorce decree who got to claim them, in the past we tried to agree and split who claimed 1 or 2. Now things have gotten real ugly between us and I told him that Im claiming all 3 which I feel I am intitled to do. He of course was pissed, so the lady at the FOC told him to go ahead and claim all 3 even though I am and let the IRS decide who gets the credit. What can I do he usually gets his W2’s back first, and will file before me? Do I have the right to claim all 3? Next year when he finally is forced to pay CS due to income withholdings does he have the right to claim them just because he pays CS, but the kids live with me?
Hi Dee,
First–breathe. Okay? Let’s get to work. First, because the divorce was in 2005, then your ex had a legal right to claim your son on his tax return for those two years. But don’t faint or anything yet.
Even though he has that right, you have custody, so you are still allowed to claim your child for the head of household filing status and for an Earned Income credit.
Being realistic, it’s the EIC that can really get you into trouble and you’re not going to be in trouble for that. Let me repeat–YOU ARE NOT IN TROUBLE FOR EIC! That’s the big scary because EIC trouble is a bear.
Here’s where you are in trouble: You probably claimed your son’s exemption– which reduces your taxable income, and you got the child tax credit–that’s $1000–that’s what will hurt the most.
Now, remember he’s your ex, he hasn’t spoken to you in a few years, (I’m guessing there’s a good reason he’s your “EX”) and quite frankly he sounds like a bully. (That’s the nice word, I try to keep my blog clean.)
Anyway, it sounds like he’s trying to intimidate you. Don’t fall for it. What you had was a little “oopsies”, this is not a criminal offense. (Nowhere close.)
The right thing to do: is to file amended returns for 2008 and 2010, take your son off as an exemption, but definitely keep him on for Head of Household and EIC. Here’s a link to my post about doing that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
It might be worth it to hire a pro to help you on this. Make sure it’s someone who understands about splitting exemptions–if they tell you you can’t, walk away.
The consequences are that you’ll have to pay back the $2000 in child tax credits and maybe some more for the deduction for the exemption. (Depends on how low your income is, that might not really affect you.) On the upside, 2011 tax season is here. You’ll be able to claim your son, qualify for the child tax credit, and EIC and that might be enough money to cover what you’d owe the IRS for the other years. Granted, it would be nice to have that money to buy food and pay rent, but it’s quite possible that you’ll come out of this without actually going into debt.
What I’m saying here is that you file the amended returns, it will show that you owe the IRS money, but you don’t pay yet because the IRS will just take the money they’re owed out of your 2011 refund.
Resolving amended returns is kind of slow. It’s quite possible the your amended returns will take longer for the IRS to settle than it will take for you to get all of your 2011 information and file your tax returns in February. You might actually get your whole 2011 refund and then have to write the IRS a check. Do pay it though, you don’t want them hounding you for money later.
Here’s what will happen if you don’t file the amended returns: Your ex will have to submit his version of the tax returns in paper form to the IRS. Maybe he’s already done so. You will get a letter from the IRS asking you to confirm information–it’s about 22 pages long. 11 of those pages are basically repeats of the first 11 pages. Don’t be intimidated–then you’re back to filing amended returns like I said above. He has until April 15, 2012 to try to claim anything on the 2008 tax return–so he’s got a deadline to deal with. If he misses the deadline, he won’t get his refund.
Another scenario is–he might want to “make a deal” with you. Trading last year’s exemption for this year’s or something like that. If you start hearing that, I’d definitely start sniffing for a rat. Don’t give up what belongs to you. You are the custodial parent–that’s big. And you’re entitled to the exemption for 2011–that includes the $1000 child tax credit. Remember, money that goes to you helps raise your son. You sound like a mom that’s looking our for your child’s best interests–it’s in your son’s best interests for you to hang on to your money.
Good luck. Be strong. It’s not a perfect situation, but you’ll pull through okay.
I am in a dead panic. I have been divorced since 2005. My decree states that my ex and I use alternate years to claim our son. Our son has not even so much as heard his father’s voice since the divorce. I do receive child support, but he has no contact whatsoever with our son. My ex makes twice the money I do, and I’ve done nothing but struggle financially since the divorce. That being said, I spoke to my ex for the first time, yesterday. He informed me that I claimed our son in a year that was his, (2008 and 2010) and that I am in serious trouble with the IRS. I’m not going to lie, I did claim our son. My ex has never paid one dime more for our son than what he’s forced to. He’s repsonsible for half of the medical expenses, etc., but has refused to pay those. My son has always lived with me, and I’ve provided for him in every way. How much trouble am I in? What will happen? My heart has not stopped pounding since he told me that.
Hi Sarah,
Sorry, I’ve kind of got my answers out of order here. Sarah, for you–two things. First, if you change a tax return, you need a form 1040X–that’s the form you use to “amend” which means you’re changing your tax return. The important part for you would be the second page where they show that you’re changing your status to head of household and you’d also want to include the EIC schedule if you qualify. In year’s that your ex has a court order to claim your son as a dependent, you don’t claim the dependency exemption and child tax credit, you just get the head of household status and EIC. This way you’re obeying the letter of the law with the court order, and you’re obeying the letter of the law with the IRS.
There’s another blog post I want you to read, it’s about splitting exemptions. Here’s the link: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
Now if your ex is only claiming your son for a dependency exemption, then he’s fine, he hasn’t done anything wrong. If he’s claiming your son for EIC, that’s a problem. You could really get him into trouble if he claimed head of household and EIC, so you might want to talk to him before you amend your tax return. Now if you really hated your ex, this could seem like a good thing, but remember, he’s also your son’s father so he’s kind of in your life forever. Once again, you have to ask yourself what the gain is. The tax law is on your side, but you’ll have to determine if refiling is going to be worth it.
I would definitely put my foot down on all future tax returns–he only gets a dependency exemption with the child tax credit, nothing else– you are the custodial parent, you get everything else. Make sure he knows how you’re filing so that he doesn’t get into trouble with the IRS, but hold your ground and keep everything tax advantage that you’re entitled to.
I
Hi Lynell,
Thanks for your question. It’s a tough one though. The easy answer would be for you to file your own tax return, but since you have no income, that doesn’t really work for you. I’m guessing that the child support isn’t enough for you to live on so perhaps you’re living with someone else?
If you’re living with your parents, you could have them claim your child and they would qualify for the dependency exemption, EIC, and the child tax credit. That would be a perfectly legal way to settle this issue. Realize of course that an EIC audit would go into effect, but Grandma and Grandpa would win because the child lives with them.
If you’re living with a boyfriend, it’s more difficult. Because you don’t file a return, your boyfriend could claim the child on his tax return for the dependency exemption only. He cannot claim EIC, head of household, or the child tax credit. You and the child must have lived with the boyfriend for the entire tax year for him to do this.
So the question becomes, is it worth it? Remember, no matter who claims your child, it will go into an IRS audit because you know your ex also claims the child. (The audit is winnable, but remember it’s still a hassle.) How much benefit will your child get out of it? Will the dad quit paying child support if he doesn’t get his tax credit? It’s not like I have an easy answer for you. You’ve got a lot to think about there.
Here’s a general rule of thumb that might be helpful: It’s a bad idea to use the IRS just as a means to get back at an ex-boyfriend. Even though he’s in the wrong for claiming your child—remember you can’t claim her so no harm no foul. He is her father. If you can show that there is harm or foul to your child—then go after him. It’s kind of like going to war, you’re headed for a battle and you know you can win but there’s going to be casualties—is it worth the fight? You can ask yourself this question every year, because if the fight’s not worth it now, it may be worth it later.
It might help if you sit down with a tax professional and figure out what it means for you dollars and sense wise to see if there’s any financial upside for you to do something. Once you look at the whole picture, you’ll be able to decide what’s best for you and your child. Good luck. Sorry I don’t have an easy answer.
My son was born in 2007. I have custody and my son lives with me all year round (minus 2 weeks a year when his dad actually chooses to come see him). We have court documents with the child support that states we alternate years on claiming our son (we were never married). I get a small amount of child support but no help with daycare, medical, or any other expense our son has. I thought I had to follow the court order and alternate years but by reading this I am getting a different vibe. Our son has never lived with him and never will. What can I do about past taxes where he has claimed our son??
My childs father and I have never been married, he reluctantly pays court ordered child support, the child has been living with me since birth. I do not work. He files taxes for the child all the time and she doesn’t benifit form the taxes. How can I stop him from filing our child. I did not ever sign form 8332 and never will.
Hi Suzie,
Thanks for writing. I agree with your tax preparer, your ex cannot claim the Earned Income Credit, you’re the only one who can claim that. One thing that might be negotiable though is that even though your ex cannot receive a child tax credit for either child, he could still claim an exemption for one. Depending upon his tax bracket that could still help him out.
And, the best thing is–it might hurt your taxes at all! You still get the EIC for both children. You still get to claim head of household because you get one dependency exemption (Head of Household gives you a lower tax rate than if you claimed single). The only thing you’d lose is the deduction for the second child’s exemption and that might not even hurt you at all depending upon your income level.
So let him have his exemption, but he can’t have the Earned Income Credit. Given that the children live with you and not him, it would actually be against the law for him to claim it.
My ex and I had a dissolution in 2007. Our kids are now over 18. The divorce papers are not clear on what credit to claim for each parent, they only state that the father is to claim the one child and the mother is to claim the other, but our divorce papers do not specify which credit, earned income or child tax credit. The way my tax preparer told me is that since both kids live with me, that was for the child tax credit and the kids are now over 18, so he can’t claim them now if they don’t live with him. She stated I can legally claim BOTH kids for earned income credit. Before the kids turned 18, he claimed one and I claimed the other on the child tax credit, but I claimed both kids for earned income since they live with me. He filed an extension and just recently did his taxes for ’10, and just recently contacted me in a threatening way, telling me I owe him money. Now he has me scared. I called my tax preparer, who told me I did nothing wrong. She said I feed the kids, I buy their shampoo and toothpaste and that money is mine. She said the IRS doesn’t care about divorce; earned income is Who Lives With You. I’m really confused, help!
Hi Christina,
You’ve got a really good question and I can help you! You see, according the the IRS regulations, if you were divorced after 2008 (and last time I checked 2010 was after 2008) then if you have custody of your daughter–which you do–then your ex cannot claim her on his tax return unless you sign a form 8332 (or an equivalent written declaration.) Your divorce decree is actually worthless to your ex as far as the IRS is concerned.
It used to be that he could just make a photo copy of the page that says he can claim your daughter and attach it to his tax return, that’s no longer valid for divorces that happened after 2008.
So how do you obey the court order and the IRS at the same time? You can actually split the exemption. He can claim her as a dependent and get the dependency exemption and the child tax credit. You claim her for head of household and EIC (if you qualify for EIC). By filling out the 8332 form for him, you’re also giving his tax preparer a clue that he doesn’t have custody. (If the preparer isn’t an idiot.)
Granted, it’s probably better for you to get the exemption and the child tax credit, also, but if it’s going to get you in trouble with the court signing the 8332 keeps you legal and keeps your head of household status. (That’s a higher standard deduction and a lower income tax brackets so you want to hang on to that. If your income is low enough to claim the Earned Income Credit, then you really want to hang onto that, and you can.)
Here’s a link to form 8332: http://www.irs.gov/pub/irs-pdf/f8332.pdf
You’re only going to sign part 1–make him work for it every time (I know that sounds nasty but never, ever sign part 2.)
If he claims your daughter for more than he’s entitled to–well then you’ve read this post–go after him–he won’t do it again. You’ll be in the right and you will win. Good luck.
Hi! I recently got divorced in 2010 and got custody of my 3 year old daughter. My ex got companionship. He is to only get her Wednesday and every other weekend but never shows up. He does not pay child support either. My attorney told me he has to claim her every other year and so it was put in the divorce! If he does not have her more than half the year and does not pay child support how can he!? A support order was not even put in the decree! Anyway what i need to know is, how much trouble will I get in if I said no and claimed her anyway? I talked to the IRS and they said he can not claim her even if its in the court order but the court where we filed for divorce said I have to follow the court order. He breaks the court order every week but if I do I know he will take me back to family court for not letting him. Any advise for me? Thanks!
Hi Tasha,
Thanks for your question. I don’t have enough information to give you a complete answer, but I can help you with a little bit of it. First, you don’t have to give your dad power of attorney to claim your child on his tax return, he’ll just have to qualify by tax standards: the child lives with him for more than 1/2 the year, and nobody else can claim him–that’s going to be the tough part. If there’s somebody else that can claim your child legally, then your dad would lose the ability to claim him.
But–it sounds like you’ve got some grey in there, so this would be a good situation to talk to somebody in person.
You also mentioned other benefits–that’s going to vary by state to state as well. If you want to email me directly with more information, I’d be happy to respond. I’d be asking you some personal questions that you don’t necessarily want posted on the internet.
Hi,if I give my dad grandparent of attonery of my child can he claim him as a dependent on taxes and get any other assistance for him.or can can I still claim him and get assistance.
Hi Annamarie,
Sorry you had to go through this hassle. Sounds to me like yes, you do have custoday and all that and you’ve already gone ahead and filed the paper return which is what you need to do.
Short answer: you’re looking at a few months before this all gets settled and you probably won’t see a check until after school starts up again in the fall. Think of it as money lost and when it finally comes, be happy.
Long answer: your mailed return will arrrive at the IRS office and somebody’s going to open the envelope and start typing your mailed return into the computer. Just like when you efiled and got rejected, that’s what’s going to happen there–then you’re return will get sent to a special area where they process “multiple dependent” claims. Now they’ll automatically issue a letter to your ex, and you’ll get one too. This letter is about 11 pages long. (Sometimes it’s 22 pages long if “head of household” status is an issue too, the extra 11 pages are basically the same as the first 11 so don’t get intimidated, you’re just repeating information.
As soon as you get that letter, you answer those questions and mail it back (certified return receipt requested to prove they got it.) You won’t be able to answer all of the questions because it will ask about school, your baby’s only two…but you will be able to answer important questions like who her doctor is or where she does to daycare and stuff. If you’re a church goer, where does your baby go to church? They have baptismal records and things like that to back up your claim.
Your ex, who won’t have all this information because he doesn’t have custody, doesn’t take your child to the doctor or daycare or whatever—he won’t be able to answer those questions quite so easily. Oops, he won’t get his paperwork in very quickly and that’s going to slow things down because the IRS will give him until the very last due date on the letter before they make a determination.
One piece of advice: a lot of people use their parent’s for day care. If your mom watches your baby while you’re working, make sure you have a few extra sources in your documents to prove you have custody. The IRS kind of takes the attitude that a parent would lie for her kid so make sure you get some extra back up.
Good luck.
i just had a newborn in 2009. i told my ex i will claim our child. but of course when his ss card came in he ran to do his taxes. well as you know i went and filed and was rejected! i did the return and now waiting. how long will it take for them to process it? will i get my money right away or will it take me through a hassel of papers? help me!!
Hi Gidget,
You’ve got a tough one. Being right and winning aren’t always the same thing. Technically, you’re in the right–you have the divorce decree. The fact that you’ve been divorced for 11 years is key because a recent divorce wouldn’t give you any weight, (due to a tax law change) but an 11 year old decree that states you get to claim the youngest child does give you the right to claim her.
The reason you don’t have a slam dunk is because he does have equal custody, so in a case like this he could actually prove custody, that’s the hard part. Your divorce decree gives you the win, but because of tax law changes– even though you’re in the right, you might get an IRS agent that doesn’t know any better. (Sounds sad but I’ve had that happen before, you’re right, the law is on your side but the agent working the case doesn’t know the law. That’s the only reason I’m worried about you.)
Here’s my first question: how much money are you out this one time because he claimed your youngest daughter? Let’s say it’s $1500 for argument’s sake. You tell your ex, “I’m out $1500 because of your ‘mistake’. You pay me the $1500, I don’t claim our youngest daughter on my tax return, and we’re squared away.”
I don’t see him going for this, but I figure it’s worth asking. If he says no, explain to him that you will be filing your return by mail and claiming your daughter. He should amend his return, taking her off or risk facing an IRS audit. You were nice, you offered to not claim her if he paid you first, now you’re giving him the opportunity of making good with the IRS before he get’s audited. Once again, you’re taking the high road and being the good girl.
He may choose to do the right thing, in which case you’re set. If he doesn’t, you may have to deal with the audit issue. Remember, you’re in the right. You must mail in the return to claim your daughter. Attach a copy of the page of the divorce decree that says that you are allowed to claim her. Also attach the signature pages of the divorce decree as well. (Signature pages are important.)
This will be slow and drawn out. Whatever you do, send copies of the pages, not the original divorce decree. You may need the divorce decreee as evidence later, keep it safe. Good luck.
My ex- husband and i have been divorced for 11 years. We have joint custody and our daughters spend equal time with each parent. Our divorce decree states that he claim our oldest daughter and I claim our youngest daughter. Which we have done on the past ten years of tax returns.
This year he decided to claim both children and my tax return has been rejected by efile because my youngest daughter was claimed on 2 returns and he filed his before mine.
He states it was a “mistake” but I am not sure the he will resolve the issues. In the mean time the IRS has given me until 4/22/11 to resolve the issue and refile.
what do I do?
Hi Daniel,
thanks for asking. Actually, I think you’ll be okay. You can claim head of household and EIC for your son. If she did her taxes correctly, she only claimed the dependency exemption and the child tax credit, that leaves you with Head of Household Status and the Earned Income Credit. It’s called “splitting the dependency” and yes, it is allowed under circumstances like yours.
You had your son for 11 months so clearly you qualify as head of household as far as time is concerned. (And I’m assuming you meet all the other qualifications as well.)
Resubmit you taxes putting your son down for EIC and Head of Household but not as a dependent and resubmit. If her’s were submitted correctly, you should be accepted. Good luck.
My Ex claimed my boy who lived with me for 11 months out of the year 2010. I had a signed agreement from her, notorized and all. i attemtepted to claim him, asked her specifically if she claimed him and she said no. Rejected!!!! She said that H&R blocked informed her that it was ok to claim him as a dependant and not claim the EIC and that I can still claim the EIC. i was wondering if this is true. She is the custodial parent, I have the contract with her signature that he is to live with me, what can i do, it is so frustrating that she can always find away to SC@w me out of money and always get away with it . again what can i do????
Hi Chris,
You have a double good case (okay that sounds silly but it’s true.) One, you have custody, and that’s the most important part. Two, you have your divorce decree. Quite frankly, the actual custody beats the divorce decree but you’ve got both so that’s even better.
Tell your tax lady to go ahead and file paper returns. You’re clearly in the right here. Your ex will get the audit letters and won’t be able to prove custody and you’ll win.
One thing you might want to consider is splitting the deduction (you claim for head of household and EIC, she claim dependency) but I only say might. I’m guessing she already went ahead and claimed the whole thing and she CAN’T-she’s not allowed to. If you were granted custody, and you really do have the kids living with you and you’re taking care of them she cannot claim EIC.
It’s going to be a pain in the behind, you’ll have to wait a long time for your refund, and you’ll get that same audit letter your ex will get. The bright side is, you’ve got right on your side. You’ll be able to answer those questions and prove your case. You will win eventually and she’ll probably lose her right to ever claim the kids for EIC again. (That sounds a little vindictive, sorry but she sort of asked for it didn’t she?)
Anyway, sounds to me like you’ve got a winning case. Go for it.
Ok i got an E-mail today from my tax lady that my return had been rejected. I have had Custody of my daughter for almost two years. It clearly states in the court order ” THE FATHER SHALL CLAIM THE MINOR CHILD EACH AND EVERY YEAR” Now i’m in a situation. She is like HA HA HA and i’m out 4k what to do?
Hi Jenny,
Sorry you had such a hard time. Here’s where you stand as far as IRS rules go: you have custody, the claim is yours! Because your divorce happened in 2009, that means that for your ex to legally claim your kids on his taxes, you’ve got to issue him a release of claim to exemption. That means you had to fill out a form 8332, I’m guessing that you didn’t do that.
Even though your divorce decree may state that he can claim one of the children for 2010, the IRS doesn’t see it that way. The parent with custody has the right to claim the children. And, even if you did sign the form 8332 to give up the dependency exemption, you still have the right to claim the EIC because your ex can’t claim EIC for your kids because they don’t live with him. You’re actually standing on pretty solid ground.
Now if you two were speaking to each other, I would recommend talking to him and working out a deal where you get to claim the kids for EIC and he would claim the dependency exemption. But I don’t think that’s going to happen.
So here’s what I recommend you do; file your return and claim all three children as dependents and for EIC. Print it out on paper and mail it in. Yes, you’ll wait for a couple of months and you’ll get that nasty IRS letter about where your kids live and stuff, but you’ll win the case–in my opinion.
One other side note: I’m curious, when you filed your return, did you do it yourself or did you go to a professional service? The reason I’m asking is that when you e-file a tax return, you get a reject code and the reject code should identify which dependent was rejected. Now, most regular tax preparers won’t know how to tell which dependent it was, those codes are pretty confusing. But the office manager should be able to go through the code manual and tell you which dependent was rejected. If you want to go that route, find which of your children were claimed, it might be easier on you to just claim two kids instead of fighting for three. It’s an option.
No matter what you choose, you have right on your side. Good luck!
My ex and I got a divorce in 09, we have 3 kids. I was granted sole custody, but I was to claim 2 kids for 09 and 1 for 10. For the year of 09 my ex was just bearly talking to me and sort of seeing his kids. When he got remarried that all stopped, he has blocked my emails, refused calls, etc. I tried to efile and of course it was rejected because my kids ssn was used for another EIC. I have talked to the irs and they cann’t help me with which child was not claimed. I am worried sick about not following our divorce decree, but I am thinking about filing with all three kids. I pay for all their care althought I do get 300.00 a month child support. My ex has decided to follow the parts of the decree the benfit him, but I don’t have the money to fight him for the 50% of medical, daycare, and other expenses I was granted. And after this long story, I guess my question is, would it be worth it to fight for the right to claim all three kids, or should I keep trying to figure out which child or children he claim. (His new wife also has three kids, I am was not sure how many could be claim for EIC)
Hi George,
I’m sorry but I don’t have good news for you. Since you are not the biological father, and the marriage didn’t go through so you’re not the step father either, then you really don’t stand a chance. This is one of those tough cases because it sounds like you’re a good “Dad”. Your problem is that you don’t meet the “relationship test” according to IRS standards. (IRS standards not being the same as good person standards–sorry.)
You also have some other issues here going against you. First–since you can’t legally can him as your son (no matter what your heart says), he would have to live with you for the full 12 months of the year for you to claim him as a dependent. Now if you were paying for college and he was living on campus, that would count as him living with you. But even if that were the case, you still have the issue of his mother and she has what’s known as “the higher claim.” So you’re still out of luck there. (Just letting you know in case this comes up in the future.) If she claims him, she’s got him.
The other issue going against you is the EIC. No matter what, because he is not your IRS defined legal son, you will not be able to claim him for an Earned Income Credit.
One thing that I recommend to couples who have split up is to “split the credit.” That’s where one ex claims the exemption for the child and the other claims the child for Head of Household and EIC. Unfortunately, you can’t even do that because the IRS doesn’t count you as a legal parent. Once again, you must have marriage or biology on your side for this to work.
But let’s say that in the future, you and he do wind up living together, you’re paying for college, his mom isn’t doing anything to support him, etc. and she’s not going to claim him. Then, you claim him as a dependent, for relationship you say “other”, you claim the exemption for him and the tuition tax credit. You do not claim EIC. That would be the situation.
I’m sorry. I really gave you a long, drawn out answer for a simple no, but I wanted you to know all of your options and what your possibilities were.
I was engaged but the marriage never went through. Long story short, her son chose to live with over 50% of the time through high school years. I never had power of attorney or legal custody though, so have no ability to get documents from schools, doctors, etc… I paid for most of his clothes, all lunches, cell phone, school expenses (proms, etc…). In 2008 she allowed me to claim him which I did and we discussed switching every other year. In 2010 I paid one semester of his college, along with other expenses mentioned above. He also lived with me for 5 months. But she filed first in 2010 and my return was rejected. The difference is significant (~$4,000). I talked with him (he is 19 now) and he agrees that he was with me more than her. I lost the education credit for him, head of household, and the EIC when I took him off and recalculated the return. Do I have a chance of winning this?
Hi Bobbie,
That’s a good question. You’d think there should be a special form for that but no, you just prepare your tax return the way it should be and mail it in. They’ll realize why your mailing pretty quickly. Once they input your child’s social security number into their system it will flag that someone else has claimed him or her.
As far as the timeline goes, expect this to drag on for months. 12 weeks is not unreasonable. 16 weeks is not surprising. I did see a Yahoo post just the other day from someone who had her situation resolved in less than 8 weeks, that’s pretty good.
Do expect to receive paperwork from the IRS after you file. It will ask questions about where your child goes to school and things like that. If you get those papers, don’t be afraid of them, just open the envelope and answer the questions. Send that back as quickly as possible because the sooner you get that done, the sooner you resolve your case.
Good luck!
is there a form from irs i need to have filled out by anyone & how long is this process