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 Brian,
You need to read this: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Basically, if you have no conditions and your divorce was during the right time period, you can just attach the pages of your divorce decree showing that you’re allowed to claim your child on your return.
If you have conditions, or were divorced after 2008, then you’ll need your ex to sign a form 8332 for you. Which she won’t because she already claimed your child. So–then you’ll need to talk to your attorney. Sorry.
actually i will just file normal tax without the dependent, and after this round of custody trials have it added to the order that there is alternating tax year filing like ive seen mentioned in other posts and have this next filing season be my first, but i would like to know about the agi part that i mentioned. how does that work?
thank you for the comment , yeah i guess it isn’t the best thing to bring up but hey its just my first name, it doesn’t seem fair it was more like four of my weeks total because she made me keep them two weeks once, which i wouldn’t object to because i love having them around. i saw on tax prep since i was going to file paper (and i still might, i wonder if there is a penalty for trying i have documentation showing my time, insurance , copy of school busing , and they are on my food stamp case ) that even if it were equal time that the parent with the higher agi is the one to win. i have two kids and if i have them half a year it doesn’t seem right that i wouldn’t be entitled to claim one if i had them both for half a year. for me its not the money although it helps i maintain my custody so i can be a good father for my children, and i’m starting to think all her custody hassle has been so she can get a larger tax return. if its possible there is anything else you could enlighten me on, it maybe is something better for email and not a post , but thank you very much , like what about the higher agi thing , i dont plan on problems splitting time this year but i will be in school and working she does give me any money so i cover living expenses for me and kids when they are here but i would most likely still have a lower agi and not qualify for any tax credit?
Hello ok here goes my qestion. Me and my baby daddy have never been marrie.But in 2010 we went through a custody battle. Judge ruled he have him 4 days out of thr week giving him an rxtra day more than me. I still remained custodial parent and it was ordered for him to pay child support. On the court order it sttes we claim our son one year one next the otjer. But he now is saysing since he has him that xtra day out of the week he is entitled to claim him from now on . Id this trie? can i figjt it since he lready claimed it this year?
Hi, I got a divorce in DEC 2009. In my divorce decree it states that I will claim my youngest child every year as long as Im current on my child support. I am current on my child support payments. My ex-husband is the primary parent having joint custody with me. My ex-husband is supposed to claim my daughter and I claim my son. Last year he claimed both children, and I couldn’t really fight it since I was deployed in Afghanistan. I tried to file for my 2011 taxes and claim my son, but it was rejected by the IRS.
So I sent the form 8332 by email to the ex-husband to sign. But he has yet to sign the form, to give me permission to file for my son. My divorce decree states other-wise. What do I do, if he refuses to sign the FORM 8332? Do I need to hire a lawyer? I want to fight this matter, but not sure where to begin. Any info will be helpful.
Also, currently serving in the military and I don’t have the money for a lawyer.
My question is this: The Agreed Order we entered into on April 26, 2011 is in regards to my youngest child. The only mention made of the oldest child was in section two where it states: “2. That the parties are the parents of two children, namely Baby A the youngest child , and Baby B the oldest child. Baby B will be emancipated next month and graduate from High School next month.”
That is the ONLY mention made of THE OLDEST CHILD because she is not subject to this Agreed Order. After stating that the oldest child is emancipated, the entire order goes on to talk specifically (or namely, as they put it) about the youngest child. This is evidenced by the language throughout the entire document.
Furthermore the Agreed Order goes on to state:
“3. The parties have entered into a new shared parenting plan which they believe is in the best interests of their CHILD:
a. Mother shall be residential parent of Baby A, the youngest child. ”
The order then goes on to say in section 4, “For the tax year 2011, each party shall claim the CHILD as set forth in the prior order of this Court.”
Please note: The prior order of the court states that for the above named child, the mother would claim her on her taxes”.
which brings us to IRS PUBLICATION 17 (2011) PAGE 29 Example 5 – Child emancipated in May. (which my oldest child WAS emanncipated in May when she turned 18). The special rule for children of divorced or separated parents does not apply. Therefore, You cannot claim a person as a dependent unless that person is your qualifying child or qualifying relative.
TO BE A QUALIFYING CHILD:
1. The child must be your son or daughter.
2. The child must be under 24 at the end of the year and a full time student.
3. The child must have lived with you more than half the year.
4. The child must not have provided more than half of his or her own support for the year.
5. The child is not filing a joint return for the year.
Since the oldest child turned 18 in May AND did not live with her father for more than half the year (she lived with him a total of 4 weeks if you combine it all) AND he did not provide for her financially after her emancipation date she does not qualify as a qualifying child for his household and he cannot claim her on his taxes.
Do you feel my reading of the tax codes and the application of the codes to my papers is accurate? I quoted the verbage of the papers verbatim to you in the above conversation.
my husband and i are separated but we’re not legally separated nor divorce. so basically still legally married. we had gone thru some very rough times and we had gotten CPS involved as well. but then then my ex husband failed on his part n I’ve completed my courses of requirements. and so i was the custody of my kids. i had gone a filed for custody as well but i haven’t heard anything from the courts. maybe he hasn’t respond for like a good 2 year now. so he has no custody nor any rights of my kids beside being the father. my father has been providing and taking care of my children and myself since my ex and i had separated. but wen my father files for his tax return, he was told that my children has already been claimed already. this has happened two times in a row. how can i as the mother put a stop to this. plus there is no other possible person who can be able to claim besides my ex husband only. there is no way i can even ask my ex husband if he had claimed my children or not. please can u help me with any suggestions to get this resolved. thank you.
My son was diagnosed with brain cancer in October 2010 after he was released he came too live with me. I continued to pay child support he was in school he has been with me an I have provided 100% support since. The attorney general didn’t get us a court date till August 2011 but he was in my care the entire time. I had to fight for him to ever visit and from August he hasn’t spoken to me or his son then he goes and claims him on his 2012 taxes. Can I just mail my return with my proof because because of all the drs an chemo and bills my house is about to be foreclosed on and I need my return
Hello, my husband has a child with his ex girlfriend, he just turned 5. We have a court order signed by a judge and entered into our file that allows us to claim his son every year on our tax returns. Of course the mother was livid about this. In our defense, we only asked for every other year and the judge gave us every year. Anyway, when she found this out she told me that she refused to sign any documents to allow us to do so, the court order states she is required to do so. To make a long story short, she went ahead and claimed him on her returns so of course ours got kicked out from the IRS. My question is we are in the right to have claimed him since we have the court order correct? And she is in blatant contempt of court for completely disregarding the court order? We just spoke with the IRS this morning and they told us to print and mail our return, so we have not started the process yet.
I have a questions, i am divorced and have two kids, the divorce papers states that we both can use one child as a dependant until one is not eligible then we have to alternate years with the other child. last year i didn’t claim a child because my daughter in not eligible, this year i told my ex it was my year to claim my son, she went ahead and claimed him anyway, Is there anything i can do?
Hey Kyle,
so your ex leaves the state and you are taking care of your child so you claim your son on your taxes and now your ex wants to put you in jail for being the responsible parent? Am I hearing this right?
This kind of reminds me of when my daughter was little, she started a pet sitting business and was taking care of a guinea pig while a family was on vacation. The family came back and never picked up their guinea pig–they didn’t want it. Then they wanted my daughter to give them her pet hamster as payment for the guinea pig that they dumped on us. Say what?
Now–in the grand scheme of things, your son is way more important than a guinea pig, and I guess that’s why I’m so shocked, “I’m going to have you thrown in jail for doing the right thing!” I’m sorry, I’m just beside myself here.
Back to business.
There’s a big difference between “joint custody” in a divorce decree/separation agreement and “joint custody” as far as IRS rules are concerned.
Let’s assume that you really did have true “joint custody” 50/50 all the time up until that point where he left the state in mid-October. Nine and one half months–divided by two equals five and one quarter months. (I’m so glad I learned fractions in elementary school.) So you had your child for 5 1/4 months plus the additional 2 and 1/2 months which gives you custody for 7 and 3/4 months, while your ex only has 5 and 1/4. And that time spent out of state doesn’t really help his case at all.
So–you’ve got the custody issue solid; You can claim head of household and EIC. I’m guessing that it’s his year to claim? The best he can get is the dependency exemption and the child tax credit. See this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/comment-page-1/#comment-5243
This is his only decent argument.
Now, technically, since your agreement was in 2009–you have to provide him with a form 8332 to claim your child on his tax return. Since you do have a written agreement, that is the right thing to do. You should amend your return and sign the 8332. You should do the right thing. (I, on the other hand, don’t like bullies and would like to smack him upside the head a few times.)
By the way, for what it’s worth, the guinea pig’s name was Suzy and she turned out to be a very nice pet. We kept the hamster too.
Hey Mark,
You’ve got a tricky problem but at least you talk to your ex.
Issue 1: your decree says that you get to claim alternate years. If there are no conditions-like paying child support, then you just have to mail in your tax return with the decree pages attached.
Issue 2: who is the custodial parent? I’m guessing that it’s your ex, is that correct? Does your daughter ever live with you? I’m thinking no so that’s not an issue here. Kids in college that are claimed as dependents are generaly considered to be living with their parents while at school. If your daughter does not live with you, then there is no need for you to issue an 8332 to your ex for her to claim your daughter.
Issue 3: the American Opportunity Credit–can be worth up to $2500 on the tax return. That’s what’s at stake here. Did you pay the tuition for your daughter? That’s a pretty big tax credit. If your ex paid our daughter’s tuition and you didn’t help, well you can see where she’s going with that. Right or wrong–this is what you’re fighting over right here.
Issue 4: When does your entitlement to claim your daughter end? At 18 or at 21? You need to know the answer to that question before you start your fight.
So, now that you know the issues-what do you do?
First-determine if you have any grounds to stand on.
Second, if you do–it’s probably best to talk to the ex first. That $2500 is a lot of money, and if that can be used to help pay your daughter’s tuition for next year–you two should consider a deal–remember–you always want to work for the highest and best interests of your child, remember?
@Jim,
Just like the blog post at the top of the page says. You start by printing out your tax return and mailing it in. It sounds like you’ve got a winning case so get started.
I have joint custody of my son with my ex. We have a temporary order from 2009 that says each of us gets to claim him every other year. In the middle of October of 2011 he left the state and I had my son longer than was agreed on. I told him I was going to file for my son on my taxes and he told me he would put me in jail and I would lose my son. But during most of our joint cusoty I had my son longer and he filed already. I have paperwork proving I had him longer than he did. What can I do?
Hey Tamar,
You already know what I’m going to say. You’re going to have to paper file. You’re going to have to win the audit again. Yes we need to change the laws so that guys like him can’t keep doing it.
Dot your “i”ts, cross your “t”s and keep good records. Forgive me but I’m going to scold you a little bit here: you know what he’s like–how’d he get ahold of your tax return if you don’t file together?
Everybody, listen up–you’ve got to protect your information.
And yeah, Tamar. I get it. You were married. He is the father of your kids. It’s kind of hard to keep information from him.
Hi my ex and I have been divorced for 6 years the decree states we alternate tax years odd years being mine and even hers. Our daughter is now 20yrs old and attends college she was taking out student loans but my ex informed me that she has paid for college this year and is trying to take the deduction even though 2011 is my year. Can she just go against the divorce decree and take this deduction or do I have to agree and fill out a form saying its okay? My daughter has a full time job in the summer and stays with a friend close to her work. will my ex be able to claim her even though my daughter doesn’t really live with her when she is not in school?
Thanks.
Hi Liz,
Your ex really can’t claim your boys. The hard part is how to stop him–you have nothing to report on a tax return. But you can file a zero balance tax return, just to get the boys’ social security numbers in use. It doesn’t do you any good, but it does help put an end to his fraud.
@ Brandi,
That’s a great questions–does the IRS want “dated” papers? Absolutely yes. Especially when you’re dealing with things like “when did the child live with you?” You’re going to want dates–proof of the year, month, time, etc.
You really want dates to substantiate any claim you’ve got.
Hi,me and my ex were never married,she just up and left and has not really been in my sons life to much.He is 5 years old and has lived with me from the day he was born.I have claimed him every year.I went to fill my taxes out and got rejected becouse someone claimed him,wich i know was my ex or her mom.I have all kinds of proof that he has lived with me.Can you please tell me what i need to do.
I have the same issue as most of the parents on her. I have been divorced since 2009. I have three children from him. My ex-hub was evading the IRS for about three years because he owed them money. (while he and I were married, I would claim HOH b/c he spent so much time in the streets cheating he was never home, I kept track) I never allowed him to claim our children. In 2010 he took my info for my 2009 taxes and claimed all three of my kids, who had not lived with him in 2009! I went to the IRS and did the audit. In our divorce, I am the custodial parent, I pay out of pocket for childcare, I pay medical bill, clothes, food, I DO IT ALL. He is thousands of dollars behind in child support. He has claimed one of my kids already causing my taxes to be rejected. Even though our decree says one thing, doesn’t the IRS look at who the children have lived with throughout the entire calendar year? My kids have seen him maybe 77 days out of the year of 2011. He has not worked in almost two years, and has been living off of unemployment. I am not going to be able to talk to him about this like an adult. His justification is “they are his kids as well, and as long as I am paying what the courts tell me to, I’m good” Help me please. Thanks in advance.
So sorry Jason,
You’re going to go through this all over again. But at least you know what you’re doing and you know you’re going to win.
Hi Ashley,
You’ve done everything right. congratulations. Now the hard part is the waiting. What I’m hearing from people is 4 – 5 months. If anybody’s got some different numbers please make a post and share. That’s information everybody wants. But so far–people are telling me 4 – 5 months.
Hi Lea,
I love telling people that they don’t have a problem! And you don’t. Remember–you won your case last time. And once again, you’ve got documentation. You’re not going to claim EIC–you’re only going to claim the exemption (and the child tax credit if the child is under 17)–that’s all.
Go ahead and amend your return and submit the documentation. You’re good to go.
Hi Sara,
You’ve got the question that gets asked thousands of times every year. I have two answers:
First: try taking your child off as a dependent and leaving her on for Head of Household and EIC–see if your return files that way. (I doubt it will go through, but there’s a possibility.)
Second–If that doesn’t work–you can file with just yourself, then paper file later with an amended return. There are two issues there–I bet the “tax company” charges you more to do that, and it’s frowned upon at the IRS. (Don’t let the IRS frowning stop you–you do what you have to do to make ends meet.)
I said two issues but here’s a third one. (You’d think an accountant could count.) Anyway, why not file it yourself? You can go to the IRS website and do the “free file” forms. You can print those. Or you can at least look at them and copy them onto a paper form. Use your last years tax return for a comparison. Or, go to one of the free tax help places: http://irs.treasury.gov/freetaxprep/
Now you’ve got some options.
I am wondering if my ex (we divorced in 2007) could claim our two children. One is 14 years old and the other is 22 but is disabled (he has cerebral palsy). My ex doesn’t pay any support out of his own pocket, we get SSDI through my ex’x benefits but my ex makes an additional $1,000 dollars through a paper route every month but none of that money is figured into or used for our two boys’ support. I don’t work, I stay home and we live from the benefits from SSDI. My ex doesn’t see the boys except once a year for a couple hours but he and his fiancée had a baby last month and I’m afraid now he will have no contact with our two sons at all. I can’t find anything in our divorce papers about claiming them for tax purposes. I’m curious to know if he can claim our kids even though the ‘child support’ doesn’t come out of his own pocket? It may seem petty but I’ve asked him to help with school fees but he says he cannot afford to, he tells me to get off my lazy fat … you know what and get a job. I just think it’s ludicrous that he’d be able to claim taxes on children he chooses to ignore except when it comes to putting their names to paper once a year so he can get some extra money.
Hi Dan,
It’s all going to come down to your documents. See: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
It sounds to me like she has no conditions on her for claiming your son–point in her favor. But–he’s over 18. What do your documents say? Some have the exemption issue ending at 18–some include it throught college. Your answer is going to lie there. Good luck though. I really think that the parent paying the tuition should get the exemption–but that’s my opinion, not tax law. Sorry.
Hey Jessie,
You really want me to comment? You had a fair 50/50 agreement but you were physically unable to meet your protion for five weeks? Doesn’t quite seem fair. The law and the rules are all on her side so I’m not going to be much help. But let me throw something out here–just in case.
You mention rehab–like were you in drug and alcohol rehab or were you injured in like a car accident rehab? The reason I’m asking is–if it was drugs or alcohol–your ex could make a pretty good case that you were totally incapable of caring for the kids even before you went to rehab–you know the story. Don’t even try–you won’t have a chance.
But–if you were in physical therapy rehab–like after an accident–you might actually have a case because there’s exceptions for things like being in the military, being at school, etc. Being in rehab would be one of them. (My next door neighbor fell and was in rehab for 6 weeks. Rehab has different meanings.)
You know your own story–you know what to do from here.
When the IRS sends the documents and they ask for proof my question is do they ask for dated papers??
Hi Bill and Dana,
I’m such an incredible geek, no body would ever say I rock–I’ll enjoy the compliment while I can. Thank you.
Now for your issues:
1. I don’t think anybody actually has their kids on the days that’s on their divorce decree. The IRS is fully aware of that and they don’t even look at those pages.
2. You prove your child lives with you through school and medical records–I think it’s a no brainer for you.
3. The consequences for the ex will be eventually paying the money back. (For a small fee I run exes over with my car, but now I drive a Mini Cooper, it doesn’t hurt them very much. ((No, I don’t really do that–my lawyer says I can’t say that online.))
4. No, filing fast won’t prevent him from getting his refund while the audit takes place. He’ll have his money in his hand before the IRS even opens your envelope. Sorry.
I have 100% confidence that you will win your audit. It’s just going to be a pain in the behind to go through it.
Divorced in 2009 with 2 children. Decree says i claim 1 child she claims the other, every year. That year my ex claimed both kids. I mailed my return in claiming the 1 child that i’m supposed to claim. Went through the audit, I won i eventually received my return. In 2010 i filed first (just claimed the child i’m entitled to)so i didn’t have any trouble. Yesterday my return was rejected. So i mailed it in just like i did in 09. Will i have to go through the audit process like in 09 or does the irs keep records that this has happened before and they found me to be in the right? We have joint legal and joint physical custody.
Thank you,
Jason
I found out my ex filed for my 2 year old daughter behind my back. I understand you have to mail in the tax forms instead and now have done so. I know I have all the proof I need to show I am her caretaker and head of household. My ex has no house and lives with his grandma, and my daughter has never lived with him. I get no child support and have never been to court over custody. I just fear that I won’t see my tax refund for a long time. I am wondering what is the length of time they will give him for a deadline to prove his case, and also how long will I have to wait after that deadline?When should I expect to see my refund?
My husband has two kids with his ex, they never married but their Custody Agreement states they each claim one child at tax time. Custody is 50/50. My husband has always claimed the younger child and the mother always claims the older child.
In 2009 the mother signed a form similar to the 8332 stating she was giving her custodial rights of the older child to my husband. My husband filed his taxes electronically and they were denied because the kids had already been claimed by someone else. the mother had turned right around after signing the form, filed her taxes and claimed both kids. My husband was in the right to claim the younger one but went ahead and filed via paper claiming the older one as well since the mother signed the paper. In 2010 my husband was audited and had to prove he was able to claim both kids. Long story short and four months later the IRS deemed my husband in the right for claiming them both.
Here comes the question part….we filed our 2011 taxes already. Now the mother wants us to claim the older child again. She signed Form 8332 and gave it to us. We are not eligible for EIC. What do we do? Do we file an amendment and get the additional return? Will this throw a red flag to the IRS since we just went through this? Will the IRS consider this tax fraud even though my husband was not custodial for the older child in 2011? I’m really leery about doing the amendment because the IRS scares me and I don’t want them breathing down our neck anymore.
Thanks!
Hi! I tried filing my taxes with a company this year and lo and behold my ex (who hasn’t seen the dependent since 2008 and lives in another state) had already filed and claimed my daughter. My return was rejected electronically and i’ve spoken with IRS and they were telling me how I need to have my preparer print out my return and send it through the mail. Here’s the problem….my preparer says that they cannot print off my return to send in until I pay the fee of $260. I don’t have the money to pay them and won’t which is exactly why it would’ve been taken out of my taxes. Someone had suggested that I refile my taxes but leave my dependent out and file with just myself and whenever I can get the dependent situation taken care of then I should receive back taxes that I’m owed…Can I do that or will that screw with my taxes more because I had already tried filing and have to get this situation taken care of? Should I refile but with just myself?
I got a divorce in 2002. In the papers I let my ex claim my son every other year. (only way to get her to stop the fighting). My son is now 19 yrs of age and goes to college. My son has not had any contact with his mother in the past 2 years. She never had to pay any child support (another thing to make her agree). He has lived with me in my home since 2002 and me and my new wife support him 100% We pay for living expences (our home) we pay for his college with no help at all from his mother. Well she thinks because hes 19 and still going to school she still gets to claim him. My taxes were returned (electronically) because she claimed him. Well I have the paperwork showing he lives in my home, I pay for schooling etc. My son also wrote a letter stating he lives in my home with no support in anyway from his mother and I pay for all of his expeces. He even had it notoerized. I wrote a letter ( also notorized) stating the same thing. I am sending the proof from the school showing he lives her as well. What do you think my chances are that I will still get to claim my 19 yr old even after she filed and got her money already? Do you think it will still be a big fight? I am sending all the paperwork in with my tax paperwork.
hi, first i think its great that you offer your expertise here. ok well , i and my ex gf seperated a couple years ago, she ttook me to court trying to get full custody, but we recieved joint but we didnt get the order stamped although the judge agreed to it ,so i have them one week she has one week 2 children. she is taking me to court again because i missed a few weeks of my time because i had to do a rehab but resumed as soon as i got back home say it was like 5 of my weeks missed for the year for past two returns she claimed youngest i claimed oldest and it was fine this year she rushed and filed both claiming the extra time she had entitled her to it. well i carry the insurance and i have taken them to doctors the school bus transports them my house one week her house the other week , we had the erbal agreement but she saw an opportunity. i’ve read some of the responses but wonder if you could comment on my situation. thank you
Jan,
first, i just wanted to say thank you. Your insight has been so helpful and I know everyone appreciates the time you have taken to share your knowledge.
My Wife and I had the kids 350 nights last year they lived with us and we provided for all of their expences. Her ex-filled 2 of the kids on his return. He made little (<15K) last year and I am 100% sure that he lied regarding where the children lived so that he would be able to claim the EIC.
The weird thing here is that while the kids are with us full time and have been for going on three years, the custody order states that HE has custody of the kids 5 nights every week. We never spent the money to modify the agreement to keep things peaceful. We are lawyering up now because we realize this dead beat will always just do what is in his best interest.
It will be easy for us to prove the kids were with us the full year, and we paid for everything and we plan to file a paper return and respond to the audit per your advice.
Do we have anything to worry about?
What are the consequences for him since this will show he obviously lied on his returns?
Since he just filed first within the last few days, will our paper filing prevent him for getting his refund while the audit takes place?
Will calling the IRS to report the infraction be beneficial?
THANK YOU SO MUCH IN ADVACE! YOU ROCK.
Hi Tracy,
Okay you win the prize for “Oh my goodness, what do I say?” Wow.
But here’s my take on it. After we sort everything out–the boys were emancipated through the courts. All the other stuff kind of doesn’t matter–they’re emancipated. So the boys claim themselves.
Usually, I’m amending returns because children claimed themselves and shouldn’t have. But in this case–they’ve got the emancipation issue on their side. I can’t see the dad winning this one.
Ah Kate, you know what to do. You’re in the right. Double check the post about court ordered exemptions: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/ and make sure you cover your behind but I’m guessing you claim everything. Paper file, let the audit begin!
@Louisa,
submit your tax return claiming your youngest daughter by mail. It will start the whole audit process like I described in the original blog post–but it sounds like you’ve got a winning case. Good luck.
Hi Bob,
I don’t get to say this very often: “No Problem!” Go ahead and amend your return. You’ll probably get a letter in the mail asking you if you want to amend (it might cross in the mail with your amendment.)
You’re good, you’re doing the right thing. Everything should be fine.
Hey Anissa,
Once again I have to say that I’m not an attorney and I’m not allowed to give legal advice. Here’s a post about court orders: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
You won’t be in trouble with the IRS, that I can say. Now I’m a little on the old and cranky side. So I gotta say–where’s the court decree? If he’s got one, he should fax you a copy immediately. If he’s really got a court document giving him the right to claim your child–why doesn’t your ex prove it. (I don’t know your mother, but I feel that she’s saying the same thing.)
Even if he does have a court decree–the best he can get is the dependency exemption and the child tax credit–no EIC for him. But I’d bet you a cup of Starbucks that he doesn’t have a written decree. I could be wrong, but logic tells me that you, as the custodial parent, should have received a certified, notarized copy of something like that.
@Randy-
If your child actually lives with the grandparents (and your ex) your ex father-in-law may legally claim your daugher on his tax return because he has physical custody.
Personally, I think that if a parent is paying child support, and paying in a timely fashion, that the custodial parent shoud sign the 8332. Not signing the 8332 is for the folks who don’t pay their child support.
So here’s my question for you: what does your decree say? Do you have any rights in there? If yes, you may be able to enlist the help of your attorney (could also be more hassle than it’s worth.) Good luck.
@Lynne,
You can’t force your ex to file jointly. You’re going to have to persuade him that it’s in his best interests to do so. (By persuade I mean showing him how it benefits him–not threatening to run him over in the parking lot if he doesn’t. Although the later may at times be more tempting.)
So–you know how much filing separate is going to hurt you–but you’re already late and you’ve got penalties and interest going too. So–if you file together, then how much is there to gain–for him? Right now, he’s holding all the cards so you’re going to have to make concessions to get him on your side. If filing jointly puts you into a refund mode–that could erase your fines and penalties. You’ve got over $5,000 in taxes, with fines and stuff you’re looking at over $6,000 that you’re going to owe. If there’s a refund there, you might want to just suck it up and offer him all of the money–because if he doesn’t go along with you–you will have to pay. Sorry.
@ Stephanie,
Sorry, you can’t reverse any body else’s tax refund. (If I knew the secret, I’d be making a fortune!)
Paper file your return and start the audit process. Sorry.
Hy Jill in Massachusetts,
I’m seeing it a little differently. You’re filing as head of household as per the rules and regulations for the federal return. Do not fill in the box that says you are a non-custodial parent–you’re not. And do not fill in the box that says you are releasing the exemption to a non-custodial parent–you’re not.
Let me know if that doesn’t solve the issue.
@Mel,
You’ve got it right. You’re the custodial parent so you’ve got the rights. Now–remember, you and your ex have been working out an agreement for several years now, so unless he’s done something wrong–you might just want to keep your arrangement up–you know, if it ain’t broke, don’t fix it.
But, to be technically correct–you should be claiming your kids for everything. If you want–you may sign a form 8332 to allow your ex to claim the dependency and the child tax credit for any number of your children.
I’m hoping to clarify some things for my nephews. They are both over 18, and their dad has had custody for the past several years. However, neither of them actually lived with him during 2011 . . . they have lived with their paternal grandmother. My sister has paid child support to the dad. In the summer of 2011, my sister went to court to have them emancipated so that she could stop paying child-support for them. The older one is 19 and lived in an apartment at school until September, and since has lived with the paternal grandmother. The rent was split (mother & father each paid half) and my sister gave him $200 a month for expenses, and he worked. The younger one turned 18 in May, graduated from high school in June, and moved into an apartment on his own the first of July. He is a full-time student, paying mostly with loans and he works to pay his bills. My sister gives him some money and she pays his insurance and phone bill.
Both boys want to claim themselves and file independently. However, their father says that he is going to claim them. The younger one is hoping to get more financial aid money if he claims himself. The way I read the rules, I don’t believe the dad has a right to claim them because neither of them lived with him for more than 1/2 the year. I have found a lot of information written for conflicts between two people wanting to claim the same child, but nothing for a conflict between the child and the parent. My sister is not trying to claim either of them.
Can you give us some direction?
Admin Roberg:
Here is my dilema~I’ve been divorced for 11 yrs I have a 13 yr old Daughter who hasn’t seen her father since 4th grade, no contact at all. He also hasn’t paid any of her medical, dental, vision, school, etc. you know where I’m going with that. Although, our divirce decree states everyother year we flip flop claiming her that’s when he was parenting her now that he’s MIA and not up-holding according to the tax laws his 50% of her bills nor does he have her 1/2 the year (not at all) nor is he involved in her academic success. He claimed her and I want to go after him for claiming a child that ultimately doesn’t exist to him. I filed my taxes they were rejected. I removed her because it said he claimed her. Now I want to file a claim against him with the IRS and let their investigation follow the written rules since obviously he doesn’t meet any of the requirements!
Hi i have two daughters and they have been with me since they were born. Me and there father were never married and money wise since we were together he never helped out after we split pretty much he has not seen them nor does he give me child support for either child. I am more then certain that he claimed my youngest daughter on his taxes. What can i do?
Hi, I have a 7 old with my x whom I never married. I have never recieved child support from him. I am now married (almost two years now with someone new) and we moved out of state due to his employment. I filed for child support through this new state where I live and my x was the only person who attended the court for it in the state he lives in. child support was established, and he just recently started getting his paycheck garnished. I have not recieved any paperwork from either court. so I dont know what was agreed upon, and he says that the judge signed an order saying we had to take turns claiming our son on income tax. I never agreed to that and our son has always lived with me and my husband and i have been supporting him. I claimed him on our taxes and so did my x, but he says I will be in trouble because he has a court order saying he can claim him. Am i in trouble or not?