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 – its me again. Quick recap: DH and I were caretakers of niece, niece’s mom wasn’t living with us or providing any help. Niece lived with us 8 months. Niece’s mom filed my niece on her taxes. We filed niece on our taxes. Our taxes were denied electronically due to the fact that our niece had already been claimed by someone. So, we filed our claim by mail since it was denied electronically. Now we’ve been waiting for the letter to come which asks “Are you sure you really meant to file this child as a dependent?”. Then, this morning my husband checks the bank account and he just keeps saying “This is wrong – something’s wrong, I don’t understand, this can’t be right, etc”. I’m panicking because that’s what you do when someone says something’s wrong with the bank account. He finally gets it out -we’ve got a substantial deposit in our account that wasn’t there before. We call the bank because there’s no way this is right. Guess what? The IRS sent us our refund. So – should I be worried? Did the IRS make a mistake? Are they going to call us any day now and tell us: “Ooops, we didn’t mean to send you that money. You need to give it back ASAP.” We could use the money, but I’m almost afraid to touch it. Any advice on this?
Hello
I have a somewhat compex situation, well at least to me. My ex fiance and I both lived together the entire year of 2011, we have a Son together.
I made approx 29k annually last year, she made around 12k. I claimed my Son for the EIC as well as head of Household, I paid the majority of everything (food/rent/bills etc).
She is now stating that she is going to go try to claim our Son.
So in short, My Son, my EX and I all 3 lived together for all of 2011, who has the right to claim him?
Ty for your assistance
Thanks for the advice..
I know we are 50/50 when it comes to who my 2 girls lived with during 2011 and I have the higher AGI however I’m concerned with the proof we will have to provide if we get audited. My oldest daughter didn’t start school until August and used our address we had together at that time however starting in December my daughter uses my ex’s address so she will have that on me. As for medical bills our 2 daughters were fully covered by medicaid. I don’t really have proof that they stay with me at my house even tough she and I both know they do. I’m so mad that she just went ahead and claimed our youngest child even though she told me she would allow me to claim both of them because she knows I supported all of them. If I only claim my one child then I don’t qualify for EIC because my income is over the $36000 limit, I’d only qualify if I claim both kids. I don’t care if I have to wait a long time being audited and just hope I have good enough proof to win but I have a bigger concern when it comes to being audited.. The past few years we filed jointly married because her mother told us to when she did our taxes for us however we are NOT married. Because of that I don’t even know what filing status I should use this year. She is telling me to file as divorced, I think I should file head of household but I don’t know and I just don’t want to dig myself into a bigger hole. My ex went ahead and filed divorced and claim one of our 2 daughters but again we were never married so of course we were never divorced either. I’m getting over $2000 less if I only claim one child, is it worth it for me to mail in tax return claiming both and get audited??
my ex boufriend claimed my daughter in 2010 and 2011 and didn’t give me nothing in 010 since we live with my mother she claims all of us as head of househould and they told her that my daughter was already claimed. I have prove form state court that I have custody of my daughter and how much he gives me for child support, but that doesn’t give him the right to file her. what should I do.. Go ahead and file her to see what the IRS says
Hi. I have kinda a problem with the EIC and who can claim it. My Ex and I divorced in 2007 and the first year we were divorced she claimed both our boys. Then we went back to court and the Judge ordered that I could claim our oldest son on my taxes. About a year and a half ago or so we jointly entered into a agreement of division of time for our sons. I have our boys for about 190 to 210 nights per year. Last year I claimed my son for the EIC and as dependent with no problems. Now this year she decided to claim the EIC for her taxes and said it was because the lady who did he taxes said she could because she is the “custodial” parent even though I have both or sons for well over half the time of the year. I filed my taxes about a week ago and got the email rejecting them for the EIC already being claimed. Now what? if you have any advice or know of a situation like this I would be over the moon grateful…
Hey Darin,
Does the boyfriend have custody of his kids? I bet he doesn’t. So if he’s claiming them for EIC, then it’s tax fraud. Taking tax advice from someone who’s committing tax fraud is generally a bad idea.
Now, you mentioned that you have custody of your daughter 19 days of every month–that makes you the custodial parent. (Let me check my math–30 – 19 = 11. 19 is bigger than 11 so you win the cusotdial parent argument.) At least for tax purposes, you are the parent that has the right to claim head of household and EIC.
So–there’s no, “you ex letting you do it” you’ve got the right to begin with. Unless I’m really misunderstanding your case. You should always get the EIC and Head of household and every other year get the dependency exemption and child tax credit too.
So what’s the new boyfriend trying to tell you? That your ex should allow you to claim EIC and that you give her half the refund? But sweetie, it’s your refund in the first place! It sounds to me like he’s trying to scam you into giving them money.
You know, people who cheat the government are also likely to cheat they girlfriend’s ex. I wouldn’t trust this guy one bit. Now you may have other issues with your case–I’d go to one of the VITA offices and have them do your tax return for you for free. Cover your behind and make sure that everything you tell them is the 100% absolute truth so that you’re only claiming what you’re entitled to–but the way I’m reading it, you get the whole thing.
And–if you do get the whole thing–then you do not give half of it to your ex and her new boyfriend. You take that money and you use it on your child, that’s what the money’s for. I’ve got a sneaking suspicion that you’re the kind of Dad that takes good care of his kid–don’t let some lying tax cheat keep you from doing that.
Hey Misty,
You can’t count on your preparer to just “do it for you”. You will always need to go in and sign stuff, make sure that the paperwork makes sense. So for this year–what you should do is paper file the return, then you won’t have to file an amendment. If your preparer already efiled, then you’ll need to file an amended return, claiming your husband’s child on there. If you don’t have your child on there for EIC, you need to put her on there too.
As far as you going back and changing 2009, you can have your tax lady prepare the paperwor, but you’ll have to sign and mail it in. Good luck.
Hi, its me again, I know she filled out taxes by e file. Not sure if she took my step daughter off. She just said it was rejected because his ex wife claimed his daughter. So does this mean se should be filling the paper work for us when we get out refund? And as far as my ex .. How do I go about going back and claiming my daughters EIC for 2009 and 2011. Should my tax lady do that or do I need to take care of it? Thanks again 🙂
my ex has a new boyfriend and he states that he claims his child every year because he makes more money and then give his ex half of the childs savings that way every year they both get something. my ex makes more than me also does this make sense? our decree states that we alternate every other year and I have my daughter 19 days per month and her mom is the custodial parent… long story… hahaha
Hey Scotty,
so it sounds like you’ve got the right to claim your child for the dependency exemption and the child tax credit–not head of household or EIC. It also sounds like all you need is to copy the proper pages of your divorce decree to prove your case.
Yours is a streamline case–paper file with the divorce decree pages attached. And good luck going back to court too.
Abbie dear, what your ex-boyfriend is doing is fraud and if you let him pay you to lie for him that you’re committing fraud too. I don’t think that’s what you want to do.
What is legal and okay for you to do is for you to sign a form 8332 to let him claim the dependency exemption and child tax credit. He may not claim EIC. That’s not fraud, that’s legal.
Never let an ex boyfriend talk you into doing something illegal for money. There’s a reason he’s your ex-boyfriend–use your good judgment.
Robert–
It seems like your ex can keep doing this indefinitely. I really want to pass a law called the Child Identity Protection Act–to protect people like you from dealing with this year after year. Eventually we’re going to get something passed.
Hi Eunice,
You asked a really important question–how do you file a tax return without any documents on your children? Because, quite frankly–the IRS will have the hides of any tax preparer who files EIC tax returns claiming children where the parents don’t have the social security cards.
Here’s my simple, answer: file it himself. Go online–see the file your own taxes link above and have him do it himself. He might not have the social security cards, but he’s got the numbers–he has to have the numbers somewhere.
Hi Misty,
thanks. I appreciate the support.
Now–first–your ex. Yes, since you have custody of your child, you have the right to claim EIC. You may go back and amend prior year returns to get it. (It may go into audit, but that’s okay, you’ve got the right and I’m guessing you can prove it to.)
Now–for your current husband: Actually–first this isn’t about your current husband at all, it’s about your tax preparer–SHE CAN’T TO THAT! She can’t call you and say “your refund is going to be $3000 lower”. She must say, “someone filed a tax return with your child’s social security number on it. I can’t efile the return as it. What do you want me to do?” And maybe that’s what really did happen, but if she just went and took your child off the return without you coming back in and signing new paperwork–well that’s a sin in my world. (You know the top ten–well for a tax person, that’s number eleven!)
Where was I? I got too worked up. Okay, so since you’ve already filed, it is best to wait for your refund before you file the amendment. But do file the amendment because you have the proper claim.
Now–if your preparer e-filed your return without his child and without you both signing new paperwork–well that was bad. Really bad. Like channel two news kind of bad. (Our local news company does it’s investigative reporying on naughty companies.” If she did that and then tells you you have to pay extra to file an amended return–well that’s highway robbery.
It’s one thing if you’re presented with options and you choose something–it’s another if they just pick for you.
Good luck.
@Taylor–if the mother did not have the child for even one day this year she can’t claim EIC. EIC is only for the custodial parent, it is never for the non-custodial parent.
Hi Bruce,
So you used Turbo Tax and your wife used H&R Block but you’re writing to me for advice? You owe me a cup of Starbucks dude!
Here goes anyway– My best advice is to have your ex sign the 8332 and let you send that in with your tax return. You’ll still have to paper file, but it will make things go much faster for you. Even if she amends her return today it will take weeks for it to process.
Depending upon the location of the H&R Block office, most of their offices “peak” ends on February 28th. Some offices peak all season long, but generally, peak is over at the end of February. Now peak or no peak, if the preparer made the mistake, she should fix it immediately and take care of the client’s needs. A call to the district manager would settle that issue–(but then again, I’m not really sure that the Block preparer really made a mistake. If your wife always uses Block, their software maintains those records–it would be in the computer program when they bring it it up. I’m not sure you can call this a Block oopsie.)
So, get the 8332 and file. If your ex gets a letter asking her to amend–well she’s going to amend anyway so no harm done.
Hey Kevin,
Let me say this back at you to make sure I understand correctly.
1. You and your ex both lived together and with the children up through August– so you can honestly claim that you lived with them for over 6 months of the year. So you have a right to claim. But you have a tie-breaker situation.
2. After you and your ex are both the legal parents of your kids so that does’t settle the issue.
3. When you were apart, you and your ex alternated nights spent with the girls–so if you sat down and ran a calendar of nights–you would be exactly equal–so that doesn’t settle the issue.
4. The final tie-breaker issue is Adjusted Gross Income–basically, who made the most money, which from the sound of things, I’m thinking is you.
If I’m understanding your situation correctly, you would win your audit.
But here’s my little non-tax advise–if you and your ex can settle this politely without involving the IRS, I think that’s the best for both of you. Do I think you’ll win? Yes. Do I think it will be a pain in the behind? Yes again.
The fair thing in your case, (I think) would have been for you to each claim one child. (Remember, I’m not seeing the whole picture, I’m looking at it from your side of the alley. You ex may have a completely different story.) So, what would you gain by claiming one? What would you gain by claiming two? What does your ex lose? And most importantly — what;s the best solution for your children? Go back and take a look at the big picture and see what you really want out of the situation before you involve the IRS. That might be the right solution for you, but just make sure you ask yourself all the other questions before you proceed.
Here’s to a mutually happy outcome for you and your family.
OK i have been divorced since 04 and have joint custody with her mom having primary. she has not went by the custody agreement since day one until the end of august this year i have had her 50% of the time.It states in our divorce court order that there is no child support and that I claim her in odd years and that she claims her in even years. She claimed her this year and she works for a accountant we are currently going back to court to modify our agreement but nothing has been changed by the court yet
PS to Michelle–good luck to you and your son.
Hi Michelle,
Your son has been ordered to drug rehab for 6 months. I’m assumiing that your son normally lives with you and you normally claim him on your tax return. I’m also assuming that the full six months all were in the same tax year.
The IRS considers temporary absences–live going to college, or camp, or being hospitalized as the child still living with the parent. So I think drug rehab counts as being hospitalized. So unless there’s some other issue I’m not aware of, I think you’re good to claim him.
My ex boyfriend claimed my daughter saying he was living with her in another state, IL but she lives with me IN I collect food stamps and medicaid in Indiana for her,myself…
1 st he told me he would bring me the $300 we broke up and he got nasty saying He is going to have her name taken off his taxes and have them amended. then he is telling me he is going to turn me into the welfare office for fraud. I didnt sign any paper giving him my permission, I only asked him when in the form of a text message that when he gets the money to bring it to me.. can you tell me what can happen who will get in trouble ? if anyone
My ex wife claimed my son in 2009 against the divorce decree which alternates between us the right to claim our son. I went through this ordeal and it did take a while but the Fed did allow my return and gave me my whole refund. The only problem is that she did it again for the 2011 tax year as well. She knows that she is in the wrong but does this anyway. I have to ask, how many times can she do this before the Fed will prevent it? Can she keep doing this?
My brother is married with 2 children but in January 1, 2011 my sister-in-law decided she wanted to be free and left the home with his 10 year old leaving him and his 3 year old daughter behind. He lasted until September in the home they rented then he moved with my parents. This is where he still lives with my niece. His wife just recently a few months ago started to come pick her up Sunday, Monday evenings and Tuesday evening. That’s all the time she spends with her. Now my brother has no documents for his daughter, none! He has the right to claim for his daughters for he had her all year but she won’t provide him with no documents. How does he goes about getting a social security? How can he claim her on his taxes without one? Thanks!
Hi Jan,
First off, I just wanna say i think you’re Awesome!
I have a couple issues I was hoping you could help me with.
My ex and I divorced in October 2009, like many others our papers state he can claim her every other year. What I didnt know until being on your site that I could have been claiming the EIC on her. She lives with me, he is suppose to get her 2 dys on the weekend (he does if he has nothing better to do) he doesnt pay child support other than maybe 2 or 3 times a year they alwasy seem to be in the amount of $75. This was his year to claim her again, which he did..but now that i know i should have been able to claim the EIC on her what do I do now? Can I go ahead and claim the EIC on her this year?
Now on to my next issue, I am remarried as of August. My husband was divorced in 2002 it also states in his papers he is to claim his daughter evry other year, this year being his.He has 50/50 and we have her just as much as the mother if not more. We filled our taxes and recieved a phone call from our tax lady saying our refund was going to be 3,000 less than she had previously stated due to his ex claiming the daughter (this is not her year) so she told us we need to wait untill we recieve our refund then fill for an ammendment. We contacted the mother, of course she played dumb and then said she would not be given us anything. What do you recommend doing at this point?
Again, thanks for all you do!
If my husband claims his daughter for the regular child deduction and the childs mother still claim for the EIC? (Remember she has not had even one day in 2011.) Since my husband will not file for EIC this year, will it still notice both parents are claims the child but for different things?
Thanks for the great information. Do you know why last year year when we both claimed her there were never any audit papers sent to us. How can I make sure this year that she gets and audit?
Ok I used TurboTax like I do every year to file my taxes. Which I tried to file the day after my W2’s arrived (Feb. 3). My ex-wife and I have been divorced since 2005 and it clearly says in our decree that I get to claim him in odd years. Well when I sent my returns off, they were rejected. I called her up and she said that yes she had claimed him because she asked her preparer at H&R Block if she had claimed him last year and then since she the preparer told her that she had not claimed him she thought it was her year.
Well she went back and talked to her preparer and she rechecked. Admitted that she had Claimed our son last year and that she couldn’t (or should I say shouldn’t) claim him this year. She (the preparer) said that they will amend the return AFTER the “peak” tax season is over. To me that means that towards the end of April or the beginning of May they will file and amended return, but I can’t and shouldn’t have to wait that long to file my taxes. I offered to let her pay me the difference and I would file without him, but she said no to that as he is worth more to me than he is to her.
In September we had a change in physical custody from her to me, just to complicate the issue.
She is not going to fight for the dependency. I think she gets the EIC this year (I’ll get it next). So should I just file a paper copy, attach a Form 8332 and/or a copy of the divorce decree and just send it all in? How will/should this play out? Am I going to have to wait until the end of the year (or several months) and fight to get my refund? Should I just let her pay me whatever he was worth to her and just live with it?
We are on talking terms and get along ok for two people that really don’t like to be in the same room together. I was surprised that she had a question about if it was her year or not but didn’t call and ask me. It is not like I can lie about it, she can look it up if she wants.
Thank You for any help you can give,
Bruce
My ex and our 2 daughters lived together until August 2011 and I paid all the bills because she didn’t have a job. She did not have a job until August but she did go to school part time for a few months at the beginning of the year. However I still paid all the bills for her and the kids. Since August we take turns keeping the girls over night but no custody agreement in writing. I pay about $900 in child support. I feel that I have the legal right to claim both kids this year since I provided for them more then half the year while they lived with me however she said that she has the right to claim them since she was the stay at home mom. I thought about letting her claim one and I claim the other but then my income was a little to high for the EIC plus I just feel like I have the legal right to claim both girls. She went ahead and filed her taxes before we came to an agreement and now I don’t know what to do. I’m about to mail mine in anyway and wait but wanted to know if you think it’s worth it for us to get audited. We lived in my dad’s house, which I paid him rent, until June then we rented another house for 2 months but I paid that as well. I also have utility bills and can get records of the adress that the girls lived at. I just don’t know if that’s enough. Can you give me any advise on what to do?
The judge ordered my 15 year old to a drug rehab for 6 months. Because his insurance is paying for it and it is provided through the state, I am having to pay the state child support. My question is since he is going to be out of my home for 6 months, can I still claim him on my taxes since I’m paying the child support that I am ordered to pay?
Hey Shondra–
You really need to read this: http://robergtaxsolutions.com/2012/01/can-my-boyfriend-claim-my-child-by-a-different-father-on-his-tax-return-for-the-earned-income-credit/
Bottom line–your fiance can’t claim your kid.
Hey Jason,
this post might help: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Hi David,
I would file and claim both kids. If your return is rejected, I’d go through the audit process, I feel you’ve got the right. If it does go to audit, be sure to have copies of the 2008 agreement to invalidate the copy of the 2006 agreement that she’s obviously going to use when she submites her documents. Good luck.
Hey Taylor,
How to make sure it doesn’t happen again? Change the laws. What I don’t understand is why you had to pay even more money to paper file? If this happens to my clients I just print the returns and we mail them. Where are you going that they gouge you for that?
How to make sure she pays the IRS back? That’s not your problem. The IRS has these really nice, friendly people who send out little notices that if they don’t pay they seize their bank accounts and other cheerful stuff. You’ll never know because of privacy laws. The IRS can be a little slow at getting to this, but they do eventually get around to it.
I don’t know about taking her to court. I’m not an attorney so I can’t make comments about legal issues.
Hi Mira,
You can still claim your child even if your income is only unemployment–it won’t qualify you for the Earned Income credit, but it still qualifies you for the head of household filing status, the exemption, and the child tax credit.
Your husband can’t claim your child unless you sign an 8332 form to allow it. Even if you did allow it, he can’t claim EIC because he does not live with the child.
If he goes ahead and files, claiming your son anyway (and you want to fight it) then you complete your tax return and mail it in.
Hey Jessie,
I’m sorry, I missed your AGI post earlier. The thing about Adjusted Gross Income being used to determine who gets the child’s exemption is that it’s the very last issue. It’s all part of the “IRS Tie Breaker Rules”. They go like this:
1. If two people both have a right to claim the child as a dependent (I’m talking about custodial rights, including head of household status and EIC)–then in the event of a tie–the person who is a parent wins. (For example, say a mom versus a grandmother–mom wins.)
2. If both persons are parents of the child, then the parent who has lived with the child the longest amount of time wins. (For example, say mom and dad and child all live together for 8 months and in September, mom moves out leaving dad and child together. So although both parents have lived with the child for over 6 months and both people are parents of the child, Dad wins this case because he lived with the child for 12 months and the Mom only 8.
3. The third and final tie-breaker is the AGI. For this example, Mom and Dad both live with the child for the whole year before Mom splits. Both are parents, both lived with the child an equal amount of time, so the tiebreaker here is the parent with the highest Adjusted Gross Income.
Does that help?
And one more thing. You mentioned going back to court and arranging alternate years for claiming you child being written into your paperwork. I think that’s smart. Let me add one piece of advice–when you do that, get your ex to sign the 8332’s now. Date them for the years you need them (because you’re doing every other year) but if you don’t have those signed 8332s, you could get burned again. A signed 8332 will be your proof that you can at least claim the exemption and child tax credit.
Hi, I have a delima. I file my children every year, but this year I wanted my fiancee to file my daughter and I would file my son. I worked part time and I did not qualify for my full earned income credit. He tried to file and was rejected saying my daughter had already been filed. She was removed from my tax return so I did not file her and the biological father has never filed her. I had already filed prior to recieving this news. My fiancee filed and just removed my daughter. I now want to find out who has used my childs personal information. What can I do at this point?
I have a child out of wedlock with an ex girlfriend of mine from 2007. We have joint custody, however, she makes it quite difficult for me to see my son. Per our decree she is allowed to claim him for the even years and I am allowed to claim him for the odd years, so 2011 would be my year. This has gone very smoothly until now. She claims that since I was still behind in my support, as well as being in arrears, in the beginning of 2011 that I am ineligible to claim him for 2011 even though last years tax return eliminated my arrearages and I have been current on support since March or April of 2011. Also, I was able to claim him in 2009 when my arrearages were much greater, but she didn’t make a stink of it then. I consulted the District Court in my county as well as my attorney and both said, upon reading my decree, that I am eligible as long as I was current by the end of 2011. My ex E-filed first so my return was rejected. My wife and I needed the rest of our return, so we filed, claiming only the child that my wife and I have together, and without claiming my other son. I am 100% sure that I am in the right because of what the decree states, but I didn’t know if my ex would be able to slide through some loophole once the whole audit process begins. If I could afford it I would just pay my attorney and fight it that way, but I am unable to do so. Please let me know what you think. Thank you!
Hi Rochelle,
If you haven’t e-filed already go ahead and e-file with your baby on the return. If you already filed your return without your baby you have to do amended return which is filed on paper so it really doesn’t matter if somebody else claimed your baby because you have to paper file the amended return anyway.
Hi Gabby,
Because you’re married your new husband can claim your child even if you don’t file together.
Hello. I divorced in 2006, at which time I got custody of my son, and my ex-wife got custody of my daughter. The original divorce decree did state that I would claim my son on my taxes and she would claim my daughter. However, in 2008, my ex-wife gave up custodial rights of my daughter to me and moved out of state. An agreement was filed through the courts showing that I was now the primary custodial parent. Since then I have been claiming both children. That is, until this year. Last year when I was going through a move and changing jobs, my ex-wife moved back near myself and the kids (Kentucky). Since I had a lot going on and the kids were excited to see their mother, I agreed to let them stay with her for about 4 1/2 months. At the end of that time period, which we had agreed upon, the kids came back to live with me again, spending more than half the year in my household. My ex-wife then filed for custodial rights and was denied, and a new document was entered into the courts that states the children shall continue to reside with me as stated in the 2008 agreement. Now this year, she filed her taxes and claimed my daughter. She insists that the original divorce decree which states she gets to claim our daughter is still valid, even though I have custody, both physically and legally now. The updated documents that render me the custodial parent do not specify anything about filing taxes. Should I go ahead and claim my daughter as well and then leave it up to the IRS to audit and sort things out? I don’t think I should lose out, because my ex decided to show back up in my kids’ lives again.
My husband and I have had joint custody of his Daughter since Jan 2010. The Mother has not had the child in her home or over night since Nov 2009. She has only seen her daughter 1 time in 1.5 years.
Last year we filed our taxed and they were rejected. We filed them the paper way and we won.It took months but we got our money. I am wondering why nothing ever happened to the mother and why both my husband and the mother were paid. We never got anything in the mail about an audit. So this year the mother again claimed the daughter and we will have to file the paper way again. When will the mother get audited and what will happen. How can I make sure she has to pay the money back and be penalized. I don’t want to go through this every year.
Also can we take the mother to court? It cost us alot of money to do our taxes and even more money to file paper.
Hello, I have a 5yr old that has been living with me ( I live alone with him) since birth. I do not have a court ordered custody agreement, however I can easily prove that our child lives with me. His father as been paying a court ordered child support since our child was 9months & gets him every other weekend. I lost my job last year and has been reciveing unemployment compensation since then.
Now I have some questions first, Can you claim a child on your taxes if your just claiming taxes from your unemployment? And will I qualify for an EIC?
His dad said he wanted to claim our child, and i told him NO. Now if does claim our child before I get a chance to file my taxes first, what should I do? And can his father legally claim our child?
i am 21 yrs old and i have 3 children ages 4,1,6mths. when i got my tax papers back she isnt on here. i thought because she was only born in august i wasnt able to claim her. is there any way i can find out wat happened with her information like did someone else claim her or what. please help!!!
Hi. I have 9yr old son and full custody. I im guessing my ex claimed my son and like to know if in order for IRS to do an audit,the taxes HAVE to be filed by ME? My now husband claimed him and hes been living with us sincd he was 3! I dont ger child support.
Hey Crystal,
Your ex has your child for more time during the year. That gives him the right to claim your child for head of household and EIC. Depending upon your court documents, you may be entitled to claim your son at times for the dependency exemption and the child tax credit. But you don’t ever get EIC. Make sure you know exactly what you’re fighting for before you do battle, and if you’ve got a shot at winning. You probably need to read this: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Hi Lii,
You need that 8332. You probably need to talk to an attorney, the IRS won’t go by your decree. Sorry.
Sharon,
Yes.
Hi Geri,
As I understand it, you and your child have lived with your father for 2 years. Your father provides all of the support for the two of you. Your husband, although still married to you, is completely out of the picture? Is that correct?
If yes, have your father paper file his tax return claiming all of the benefits he may be entitled to: head of household, eic, dependency exemption, and child tax credit.
It will go into audit and your Dad will win because you folks have custody of the child.
@Jacqueline,
I’m sorry but your ex is a scumbag. Your kid has brain cancer. Brain cancer, for cryin’ out loud. How low can the dude possibly sink? I’ve heard lots of stories about deadbeat parents, sneaky exes, and just plain old bad people but I think yours takes the cake. I’m sorry, but that just makes me mad.
Pardon me, you weren’t asking my opinion, you just wanted some tax advice. Sorry.
Ahem. My professional opinion is that you should paper file your tax return. Don’t send the proof, it will just delay the process. (Plus the IRS will lose it anyway.)
Do talk to the bank about the foreclosure. Explain the situation and that you will be receiving your tax refund but it will be delayed. There was just a big settlement with the big banks the the Attorney Generals from several states–I’m guessing they don’t want to be accused of foreclosing on anyone without doing all of their due diligence. It might not do you any good, but it certainly won’t hurt.
Hey Ashley,
This is for you: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
It tells about court ordered exemptions and how the IRS treats things. If the IRS told you to paper file your return, I’m guessing they already asked you all the relevant questions and that’s what you should do. (But double check the post just to be safe.)