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
My Daughters ex-boyfriend for the past 3 years has claimed my Grand-daughter frist and in doing so, I have had my wages garnished. She lives in our house year-round. He has not been consistant in child support. He claims here first and this year when we went to do our taxes it was rejected. What recourse do I have?
Hi,
I have a son by my ex girlfriend. My ex doesn’t work and lives with her mother but I provide her with child support each month to care for all the needs of my son. It was understood that I would claim my son this year. The amount of child support that my ex receives exceeds the amount that would be required by law. For the tax year ending 2011, my ex sign form 8332 so I could claim my son as my dependent. Not EIC because my son doesn’t live with me. When I filed, my return was rejected because her mother ( the grandmother) had already claimed him. I am unsure what to do at this point. The child support was never court ordered but I can prove that my ex get the payments each month because it is taken directly out of my check and deposited into her account. What are my options. It is worth having an audit done?
Thanks,
Will
I am so glad I saw Mike’s question because it is my exact same problem. My ex called and said his return was rejected when he e-filed and did I claim our daughter as a dependent for 2011. I then realized I made a mistake and shouldn’t have claimed my daughter (I got the years confused from our divorce papers). I already got my refund. He was really mad that he would be out the money and honestly I don’t blame him as if the problem was reversed I would be pissed! He is such a great Dad. I offered to have him take my year next year for 2012 but he said only if I legally wrote something up and filed with the court. By the time I looked into this, he informed me he paper filed claiming the dependency too. I want to make it right. I already amended my return once because of an unrelated different mistake..will it look bad to amend it a second time? I suppose its better than an audit? Or will they still audit me?
She actually saw the light (after talking to her attorney, I assume) and filed an amended return today. The lesson here being (as you said) that communication should probably be attempted before going through the hassle of an audit, etc etc.
Thank you so much!
Hi Don,
Thank you. You know what I’m going to say don’t you? You just want me to say it. (I’m feeling the vibe through the computer.)
Go for it! She wants to wait and see. Okay–show her. You’re in the right. You’ve got the proof. Big proof–different state! School registration. You’re looking good here.
The hard part for you is June–no school, no job. But I suspect you’ve got something up your sleeve there. Plane ticket receipt? Something? I suspect you’re good to go on this. Good luck.
Gee Adam,
I think you sort of answered your own question. Your ex saw how much more money she’d get and she went for it. The thing is–you’ve got a right to claim your child so I’d go ahead and paper file anyway.
This might be negotiating time–if she qualifies for EIC and you don’t–maybe you two should consider having her give you form 8332 forms and having you claim the exemptions and child tax credits and she claim head of household and EIC. (Do the math first to see if it works for you.) But it’s possible that it could be a better situation for both of you. (But it might not–so do the math!)
But–you child-you have custody-your right. That’s the bottom line.
Hey Jacklyn,
You might have some options. First–you were together until April of 2011? That means you lived apart for the last six months of 2011, right? If that’s the case, then you can file as Head of Household instead of married filing separately. That could count for some Earned Income Credit money for you. I’m assuming that your daughter lived with you–if she didn’t, then he should be the one to claim her.
If he had custody, even though you supported them, you’re kind of in a tight spot because that leaves you with claiming Married filing separately–that’s the worst possible tax status.
If that’s your situation–you might want to make nice and persuade him to amend his return to include you and file jointly.
Right now, you sort of need to figure the whole tax situation all three ways–what he got, what you will get given the situation, and what would happen if you filed together. Also–if he did wrong–how to fix it.
It may be worth your while to get some help with this. Good luck.
Hey Mike,
No problem! Just amend your return. If you get the amended return in before April 15th, that replaces your original–it’s like you never filed the mistake in the first place.
Hey Cecilia,
My question for you is–did the IRS say that your refund was reduced “pending confirmation”? or was it just reduced–end of story? The reason I’m asking is because I think you have a really good case–but by mailing in your return–that should start a process, not end it. If it’s starting the process–I think you’re fine. If you got a final letter–you need to do some follow up and find out why you were cut out.
I am a disabled veteran on Social Security. I have not had to file taxes since 2002 (for the previous year of 2001).
My divorce/custody settled on Oct. 18th 2010 with my X getting full custody, but she sent the children to live with me by January 3rd 2011 (enrolled in school on Jan. 6th 2011). I had them all of 2011 except from Aug 5th-Sept. 16.
Now that the 2012 tax season is here I realize that even though she pays no child support to me (because she has actual custody, though I have the 2 children) that she decided to also claim them on her taxes and tell me nothing about it. I don’t file taxes, but isn’t it illegal for her to claim having the children and not make any effort to use that money towards their care?
BTW, she also lives in an entirely different state than we do.
Adrian
I have a question, My ex and I have 50/50 joint primary care of our 5 yr old son. Our notorized stipulation states that we alternate yrs of claiming all benefits for our son. My husband and I filled our taxes through H&R block. This year was my ex’s year to claim our son. After my husband and i filled our taxes, I get a call from my ex stating we had claimed the EIC for our son and we infact were not supposed to. My husband and I were not aware this happend. We live in a small town, our tax guy has done our taxes for the last 3 years. ?He even has a copy of the stipulation in his office. I called our tax guy and he had informed me that we DID claim the EIC and it was a mistake. I tried explaining this to my ex and he had told me I need to amend my taxes. I had contacted my tax guy and had informed him of what my ex had informed me of. My tax guy stated to have my ex’s tax person call him. Well, my ex did have his accountant call ours. Our tax guy(from H&R block) had told me that my ex’s tax guy said that he wasnt sure what the issue was and that he would call my tax guy back if we needed to change anything. Well my ex’s tax person never called mine back. My husband and I got our tax return just fine. Last night, I had asked my ex if he filled his taxes. He said yes. I asked what the plan was for the whole EIC mix up, He was well I dont know, my accountant said he pushed it through!!! Not understanding, I asked what do you mean he “pushed it through”??? My ex told me he didnt know. So, since it was an honest mistake, not made by my husband and I, I am afraid that we will be audited because we claimed just the EIC for our son. And I am not sure if my ex tried claiming the EIC as well. We dont exactly have the best relationship. Please help. I am so nervious that something terrible is going to happen., Before finding out my ex filled his taxes, Our tax guy said that we are not going to amend them because he had not heard from my ex’s accountant as to what needs to be done. I am so lost, I dont want it to seem that I am trying to pull one over on anyone. Please …I need help!!!!!
My two girls live with me full time and have for the past two years. They see their mother a few times a year. I have court paperwork stating I get both girls for tax purposes. Last year and again this year, my ex has claimed both the girls for EIC. Do I have any recourse? What will be her consequences? Thank you. I have found your website very helpful and a great resource.
Hi. Question… I know sort of similar to all the rest but maybe you can shed a little a light for me personally. I have 2 young children. I am the custodial parent. The father is active, meaning he pays child support as ordered and sees them most, not every 1st and 3rd weekends. I did not work at all last year, lost my house and moved in with my parents and sister. I allowed my sister to to claim my children this year since she was a big help to help during this difficult time, however when she went to file it was rejected because the dad ( I am assuming) has already claimed one of them. Its really principal to me, because he wasn’t right and he knows it. Is it worth the fight, what should I do? Do I go ahead and allow my sister to claim one child and go after him on the other one and if so how do I/ we do this? Do we amend? Does she get in trouble? Should I go ahead and do my taxes and claim the one he claimed so that it’s my fight and not my sisters? Is it too late for that and will it hurt me or her? I don’t want to hold up her tax return for something silly he did. I realize it takes a while, but what are my/ sister chances of winning. I have everything to claim that my children live with my sister and I… medical records, daycare, etc. I feel like if I don’t do anything this go around he will do it again next year and on and on again. He is mean and low down and his intentions are to hurt me and get me sort of speak. Please advise… and thanks for the good advice so far!
Tamara
What a great resource. 🙂
My ex and I have been claiming our daughter as an exemption every other year. This is stipulated by the divorce decree. My ex is the custodial parent. I live in a different state.
June 1 of 2011, my daughter moved in with me, and stayed with me. Though we didn’t change legal custody yet, she lived with me the whole time (and still does.) She has a job here (since July) goes to school here (since August) and lives with me every day.
Well, my ex just told me that she claimed her on her taxes for 2011, which is MY year. She also claimed that she lived with her for more than 6 months, which she did not. (Don’t ask me why she did this. Let’s just say we’re divorced for a reason.) I’m sitting here looking at my completed taxes, and I get a couple hundred dollar return AFTER the child tax credit (but will owe a fair amount if I don’t get it.)
So now my choice is… to either pay the IRS a couple thousand dollars or to get audited? Am I reading this correctly?
Can I claim my daughter lived with me for over six months (she lived with me for seven months) if I am not the custodial parent? I mean, custodial or not, she in fact lived with me, correct? (June 3 – Dec 31 = 7 months, almost.)
My ex’s response is “Well… I guess we’ll have to wait and see what happens….”
Ugh!
I have split custody with my ex wife. In our court order, she is to claim our oldest child and I am to claim our youngest child. I have had no problems until this year. She filed with both of our children. I have the children 50% of the year and pay childcare costs on my days as well. Is there some reason why she thought she could file? Doesn’t the court order say enough? I’m just wondering if there’s a stipulation. I made more than what the EIC guidelines are, so I don’t qualify for anything like that. She however could possibly qualify.
Hello. hoping someone can help me here. My soon to be ex husband claimed our daughter on his taxes yet he only worked 2 months of the entire year and we are not divorced yet. I supported him and my daughter the ENTIRE year. i didnt find out he claimed her until my return was rejected. Is there anything I can do or not because we lived together until April of 2011? Thank You
My ex called and informed me it wasn’t my year to claim my daughter for 2011. My issue is that I have already received my return. Will I be audited for my mistake? Or how can I clear this up? Amending? Please help, it was an honest mistake.
my ex claimed my son on his taxes while he DOES NOT live with him nor he supplies any support. He doesn’t even show the effort to be involved in his life. so i mailed my taxes in and i received a letter stating they are reducing my refund. the reason given is that my dependent has been claimed by another tax payer -_- I have medical and school proof that my son lives with me. What are my chances??
Oh Colleeen,
You got me distracted! I started thinking of the old movie Yours Mine and Ours! (Not the one with Dennis Quaid and Rene Russo, but the old one with Lucille Ball and Henry Fonda–I’m suddenly feeling really old, you probably weren’t born yet.)
Anyway- back to work. I’d like to tell you that these “repeat offenders” will be punished and they won’t be able to claim their kids ever again–but it seems that so many of them are getting away with it I wonder when that time will come. I’ve occassionally gotten posts from folks who had their refunds help up because they weren’t supposed to claim a child and they got caught before the refund was issued–but that seems pretty rare.
What you can do–although it’s not the best option, but it might help a little with cash flow–is e-file your return without the child and then send an amended return as the paper file. I don’t recommend it as a first choice–(it’s better to go straight to the paper file if you can wait for your refund) but if money’s tight, you do what you need to do. The IRS does understand that.
Hey Deanna,
Technically, you have the right to claim the EIC–but I understand. I think your preparer is talking about doing a split exemption–here is more information: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
If the split exemption works for you and you all are happy with that, then go for it. (I’m not supposed to say that–I’m supposed to say you get the EIC and you can let her have the other credits–that’s technically correct. Okay?)
But–then there’s real life. So in the real life world if this works and you’re all okay and the child is being loved and taken care of–well that works for me. (But I’m supposed to say–custodial parent claims EIC and the non-custodial parent can be given the exemption and the child tax credit. I have to write that because that’s the way the IRS rules go.)
Hey Brenda,
You 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/
That’s basically your mom’s situation.
The best thing to do is to have the dad file a return claiming his son, have your mom amend her return taking the boy off and pay back the tax money she received for claiming him. If she received any EIC money for him–it’s absolutely essential that she do this. If she received a child tax credit for him–it’s absolutely essential that she do this. If she only claimed him for the exemption–she has a fighting chance–but once a parent claims the child–she loses. So, she really doesn’t have much going for her case. Sorry.
Hi Summer,
So you’ve got twins? I bet they’re double cute and double fun aren’t they? And now your ex goes and files and gets the refund and it doesn’t even go against the back child support he owes so not you just got double cheated–that’s not fair!
Here’s what you do–you file the paper return and go through that whole process. Eventually, you will win and you will get your money. He will have to pay his tax refund back and he will still owe you child support as well. I guess that’s your way of giving him the double whammy.
(Sorry, the jokes are really lame–it’s a Monday.)
Hey Katrina–
I’m a little confused, you said that you were claiming your husband’s taxes because you filed separately? You lost me there. You mean you were preparing your husband’s taxes because you file separately? (Remember, I’m one of those anal retentive accounting geeks and the words make a difference here.)
So I’m assuming that you’re filing his return. So yes–if he’s the father and he has the real custody of his daughter, then he should definitely be claiming her on his return.
I doubt you’ll get anywhere with the police–just paper file the return and follow through with the audit letter when it come. Your husband should win.
Now–here’s a few extra issues.
1. If you file separately, then there’s no EIC (if your income is in EIC range, then you might want to consider filing together. If one of you has a debt where the IRS confiscates your refund, you should try filing an injured spouse claim. Here’s information on that: http://robergtaxsolutions.com/2011/03/injured-spouse-relief/
2. Since you are married to your husband–and you live with him–you can actually claim your step daughter on your tax return. For example–you two really do need to file separately–you can’t get EIC, but you could still claim the exemption and child tax credit. It’s better to put her on the father’s return–but it is perfectly legal to put her on your return (only because of the marriage.)
Just some things to think about as you follow through with this.
Hey Bern,
I hear you. Six years is a long time to deal with the hassle. It’s identity theft is what it is. But you get no protection. You just got to keep paper filing and getting your money back. Eventually–the IRS will do something to your ex–but it sure seems to take a long time. I wish they had a PIN number like they do with the identity theft victimes–but they won’t do it for the kids (I asked.) Until they change the law, you just keep paper filing. Good luck.
My husband and I have 4 children together (1-mine, 1-his, 2-ours). He has legal physical custody of his (1) daughter. His ex has claimed their daughter incorrectly as a dependent for the 2nd years in a row. Last year, the IRS required his ex to pay back whatever she received in way of refund and we (eventually) received our refund, but we had to go through the reject, mail paper return, audit process. This year, we’re going though it again. My question is: How does the IRS handle this type of ‘repeat offender’? His ex is impossible to talk to, but how can she think she can claim their daughter when she lives with us full time and attends school. Thanks!
My stepson lives with me and his biological father. My stepson’s mother claimed him on her taxes. When we went to file electronically, it was rejected that he was already claimed for EIC. My tax preparer said that we can remove him from the EIC but still file him as a dependant and then still go through with electronic filing. Is this correct information? We had my stepson for 7 months of the year and she did have him for 5 months of the year, so that is why we are not going to fight for this year. We want things simple between us.Z
I have a wird situation and hoping u can help me. My husband ex wife claimed his daugther this year when he has sole custody of her. She got back over 5000 and we get nada. She don’t pay child support or see the child and we have had sole custody since march 2011 how can she get the money when she don’t have her? Is that even legal?n and how does she get in trouble and will we ever see that8 money she got for lying to the irs about having her when she never did? Thanks plz email me ..
My mom claimed her boyfriends son in her taxes.. and she does not have custody of him.. and the mother of the boy is angry.. but hes lived with us since he was two years old and hes now nine years old.. she does not provide any money for him and sees him once in a blue moon…
the only thing she has against us is that she registers him for school cause my mom is not his legal guardian.. but neighbors and teachers can comfirm he lives with us.. who is in the right?
my ex husband claimed my twins on his taxes an now has gotten tax money back from it. I have custody of my twins an he just got visitation in sept. of 2011.How can i get the money that is owed to me an not him. He is even in back arriers from child support an i dont think they flagged him soon enough to get whats owed in back child support as well.
@Jessie,
Thanks for your kind words. The problem with finding a legal site with that kind of information (according to my lawyer friend who won’t post on my site because of her attorney rules that she has to follow) is that lawyers have to be very careful about the advice they give.
If you do find a legal site with good information about custody orders and stuff like that, will you please post the link here? I think a lot of people reading here could use it. Thanks.
hey! well this is a very good website. I was claiming my husbands taxes cuz we file separtely and just found out that his ex wife claimed his daughter when he has full custody and she has no rights to claim. she just got supervised visit right in feb 2012. we have had this child since march 5 2011 and she claimed her. Is that not a crime? How do I fix this? I called police and they said it was tax fraud and i am so mad cuz she got over 5000 for her and her working plus i have an attorney wat do u think my chances are are fighting and how long will this take?
thanks!
thank you Jan, wasn’t thinking it was actually legal advice but more of your experience since i assumed you have had to interpret orders, and what things you have seen that seem to work best for tax clarity, i was thinking darn 365 days in a year does not divide by two. i have a lawyer court appointed but i figured my best bet was to do much of the research and gathering and let her put it in form best presentable for the court. she did not have any idea of how the other lawyers request for primary residence could affect things. thank you again it helps me a lot to have a good understanding before the judge presenting logical arguments. maybe the most clean cut way would be to just have it ordered alternating. if i am lucky i can find a legal site as good as yours 🙂
Hi Jan
I been having hard time for pass 6 years during Tax season time I live with my parents and my 2 kids I got divorce in 2005 since then the judge award me full custody of the children and they live with me, My ex just got visitation during the month and 2 weeks of vacations during summer and some holidays well i find out every year he claims the kids on the Taxes and we have got audit already once and IRS send me a letter i have the full rights to claim my children because they live with me not the father to continue doing so, well i spoken to my EX it wasn’t good either he keeps telling me he will continue claiming our children because he is in Debt and needs the money and plus he paying a lot child support he wants his funds back so what i’am saying he hasn’t stop he is continue claiming the children that makes it hard for me to claim it on time i have to do it thur mail .IRS already knows the issues that my personal tax payer helps me fix this problem Him self even tells me He going to get caught and go to jail he shouldn’t claim the kids and during the divorce the judge didn’t mention who should claim the kids in the Taxes but he did say out loud I have all the rights for the kids medical,school,home welfare status the children live with the mother..Father pays child support and gets visitations that all .case close so im trying to understand after all these years whats going to happen next IRS hasnt said nothing they just audit us ONCE back year of 2006
@jessie–
Once again, you need an attorney. It’s against the law for me to give legal advice. Sorry.
one more question, when we were together i devised it was best financially for us to each claim one i didn’t really crunch the numbers but i figured overall probably. the deduction doesn’t mean the world to me but it helps and it spurns me a little to see her take advantage. but i don’t want to be sucked into a game of gotcha. id prefer things evenly split when i get the custody order drawn up are there certain ways it should be written so i don’t have too much trouble with the ex i don’t want to have to be drawn into this stuff on a regular basis. NY state, i am pretty stable at the court so i don’t see any problem with me requesting stipulations that will add further stability.
@Jessie–
your questions isn’t silly at all. It’s actually pretty smart. You and your ex have the kids 50/50 but now she wants it in the legal documents that she has the primary residence? You bet it has something to do with taxes.
And yes–the IRS can actually decide a custody case based on a couple of days so it’s really important for that to be figured out.
Now–I’ve seen decrees that have 50/50 with the exact days drawn out but the parents don’t really follow those orders–that’s why the IRS makes you prove you really had physical custody of the kids even if your decree says you do. But–you’ll want to protect yourself. Especially if you are prone to having the kids 50% or more of the time. You might want to talk to your lawyer to make sure that you are treated fairly.
hi, i asked a couple questions before but i had one more i looked and didn’t see a definite answer with the find search of the page, its concerning a primary residence order. me and my ex share our two children one week me and one week her we have had an agreement to each claim one child each year and have done that since their birth but this filing season she hurried and filed first and filed both. because four of my weeks i didn’t have them. she has also started a new custody trial in august. but to the point..her lawyer offered settle with same half and half weeks and legal, the only change would be to put her name as primary residence, i think i odd and suspicious that it has something to do with tax filing maybe. is it like if i missed one week out of the year somehow the order of primary residence would be the deciding factor? and just to know ahead of time , when it comes to irs will it be down to just a couple days more? they might seem silly question i just wonder where the line is drawn, thanks again!
Hi Alyssa,
You’re going to paper file your tax return. 1. You had your son the longer amount of time. 2. You have the court order. 3. I don’t know, I’m an accountant, I just like the numbers.
But seriously–this is your win. You might also want to see my post on Court Ordered exemptions: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
But you’re arguing on time–because he did live with you for 7 months. The time argument gives you EIC (since you’re married you don’t need head of household filing status.) If your income is too high for EIC, then you can still claim the exemption and the child tax credit. If you are not required to pay support–then you can just photocopy the parts of your divorce decree that says you are entitled to the exemption and mail that in with your paper filed tax return. (It will greatly speed up the process.)
If you do qualify for EIC–then your decree won’t help because you’ll have to prove your son lived with you. That will come later–just get your tax return mailed in for now. Good luck.
@ Carla,
Hi Carla–California has a tuition and fees deduction on it’s state tax return–but that’s the college tuition deduction. There have been several attempts at passing legislation for a California private school tax credit, but to the best of my knowledge–none of them have been passed. You might want to check with a California preparer, but I’m thinking he’s making a mistake.
Since you’ve already filed and gotten your refund–you’re safe, but I wouldn’t hand over your daughter’s social security number anyway.
My son lived with me and my current husband for almost the whole 7 first months of 2011. I am not certain, but I think his current common stepmother has claimed him as my e-file was rejected. My ex didn’t work any of 2011 and my son moved in with them in mid July. I have it in my decree that I claim all children. Divorce was in 2000. I paid his health insurance the time he lived with me as well. What do I do?
Thank you for the advise. We’re in California. I’ve already filed and received my refund. Is he still able to claim her as a dependent?
I hope he doesn’t bamboozle me but it’s possible with this guy.
Hi Macy,
It sounds to me like your parents do have the proper claim. I’ve been telling people that it can take up to 5 months, but I recently had a post from someone who got their refund in 4 weeks. (See the post from Tina Way.)
Now, I think Tina was really lucky–but keep your eyes open. I’m guessing that since you claimed your child last year, it will take more time because your parents will have to complete the audit papers. But at least it seems like the IRS is trying to move a little faster on these things. Good luck.
Hey Veronica–
Just when I think I’ve heard everything—
Okay, the question is–did he claim you as a dependent or did he file a tax return in your name and take the refund?
If he tried claiming you as a dependent–he’ll probably just have to pay back the money–no, no, bad boy.
If he filed as you–that’s big time fraud and that could land him in jail.
I’m guessing he just claimed you as a dependent. I would recommend filing and claiming yourself back.
@Gabriele,
I honestly don’t know. I do know that the Taxpayer Advocate has brought it up before Congress–but–well don’t get me started.
Hi Clyde–
Here’s the thing. I’ve got a divorce decree sitting in my file drawer for a guy that says his son lives with him for 180 days of the year. I know for a fact that his child only lives with him every other weekend. The IRS knows it too. A lot of those decrees say stuff that just isn’t true. That’s why the IRS expects you to prove things. The divorce decree won’t hurt you–but you’ll need more that just that piece of paper to prove your child lives with you. (Because your ex already claimed him.)
The fact that you made more money won’t help you here–you need to prove that your son lived in your house. That’s the thing you’ve got to prove.
Okay Carla you know I’m going to say no, right?
Okay maybe not–but I’d be really careful with this. What state do you live in? Illinois has a tax credit for tuition for elementary school, but here in Missouri we don’t. So–what’s he really trying to claim? Plus–if he’s claiming the tuition–well he’ll have to claim a dependent. So–what’s the end game?
Paying tuition is a good thing–so I’m not opposed to you allowing him to claim the dependency exemption and child tax credit–if you choose to do so. Just make sure that whatever he’s doing is on the up and up and he’s not bamboozling you, okay? (How do you spell bamboozle anyway?) Is that even close?)
Hi Jan, I have a few questinons for you.My son and I live with my parents and I do not work so my parents will be claiming me and my son since they support us both all year loong since his birth in 2010. I worked throughout 2010 so I claimed him on my taxes for 2010. This year, my child’s father, whom never lived with our son claimed him on his taxes right away so when my mom filed hers it got rejected right away. She sent he file in through the mail on Feb 7 2012 and we have not heard anything from the IRS yet. It clearly states in the quidleines that he must live with the child for more than half the year. I feel that my parents meet this qulification and he is wrong. If so, will he be ordered to pay back the portion he received for our son? Also, about how long will it take to hear anything from them and to resolve the investigation?
Hi, I hope you can help me with my question cause is a little bit different than the rest. My ex-husband claimened me on his tax return, I found out when I tried to e-file and couldn’t do it. Now, I know what to do if I want to fight this case, what I don’t know is what is going to happened to him, if the only thing is for him to return the money I’m ok with it, but if he can go to jail or not be able to file tax return for years then I won’t do it, I’m really upset for what he did but he is my sons father and I don’t want anything bad happening to him. I thank you beforehand for your time and hoping you can help me. Thank you again.
Thanks for the info. Yes I paper file and win every year, The new court order does not specify tax fillings. I just would like to know why the IRS is so blind to this?
Thank you for your response to my post.