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.
_______________________________________________________________________
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
@ Judit,
Congratulations. If you’ve got the right paperwork in your divorce decree, it really does go much faster. Thanks for the input.
Hey Montee,
You won’t find your answer on the Where’s my Refund website. You’ll have to call the IRS. And yes, they are that backed up so it’s not unusual for things to be this slow. The main line is 1 800 829-1040. That will put you in to an operator who will direct your call to the right department. Expect to be on hold for a long time so have something to do to keep you from going crazy. Eventually, you’ll get an answer.
Kristen,
Your ex has a claim to the child, but you have the higher claim. Go ahead and file the paper return to start the audit process. OR–if it’s possible that you two may still work things out–maybe call him and talk to him about it. The question really is, what do YOU want to do about this?
Hi Eric, did you see this post? http://robergtaxsolutions.com/2012/01/can-my-boyfriend-claim-my-child-by-a-different-father-on-his-tax-return-for-the-earned-income-credit/
Although there are certain situations where it’s possible–99% of the time it’s illegal.
I thought this part of the divorce decree, along with the parenting plan, was something to go by when the parents can not agree, and then it is merely a suggestion of what both parties should do. That’s pretty much what the lawyer told us. Has anyone else had it explained this way also?
I have two children. Our MSA from 2008 has us each with 51% physical custody of one child and entitled to same child’s tax exemption. In 2010 courts awarded me temporary sole custody of both children. Children didn’t see their father 7 months that year and then only supervised. In 2011 we gradually increased visitation so that today we are a 36/64% split. Their father claimed one child both years per previous years. I want to claim both exemptions for 2011 and amend my 2010 tax return to include both children. Given that I have the court stipulations that document that I had 100% to today’s 64% physical custody, is it likely that the IRS will award me the tax return?
So my ex claim our daughter even though we had a court order stating i was supposed to claim her until age 18 and she was suppose to file an 8332 (i think that is the form) The irs rejected my electronic file so i paper file and sent in the court order however that has been since 2/19 and we have not receive a response or cannot locate ourselves on the “where is my refund website” Is there a telephone number that we can call for help or do we just sit and wait
Where to start…My son’s father and I were never married. We tried working things out last year and our son and I lived with my son’s father between March and mid June. I left and brough my son with me because we have a signed visitation agreement by both of us and a judge that says that our son lives with me and visits with his father. Again my sons father and I tried to work things out and we all moved in together at the end of October for the rest of the year. My son’s father claimed our son even though our son stays with me majority. My question is, what am I supposed to do about this?
My accountant attached a copy of my divorce decree with my tax return when mailing it in and my return was in my bank account in 5 weeks without any audit papers to fill out and any additional questions to answer.
My ex wife has no job and no income. We have a nine year old son that we have joint custody and she has primary. The ex lives with her boyfriend. The boyfriend is trying to claim my son as a dependent since the three of them live in the same house. The ex is not filing a return. Can the boyfriend claim him?
Hey Dee,
So you know for a certainty that it’s not your son who claimed himself–which means that the culprit is most likely (okay, positively) your ex. What can be done to prevent it? Good question–change the law.
Seriously, after tax season is over, we’re launching a campaign to the white house for the IRS to start a child identity theft PIN protection number – similar to the one they have for adult identity theft victims. Dee– I just put you on the top of the list , we’re going to need 25,000 signatures in order for the Obama administration to even look at it. We’ll be sending e-mails out in about 2 weeks to get started, and hopefully people will go sign in.
Until then, we’re all stuck with those audit forms again. Sorry.
These ex-spouses who claim dependents when they are not entitled to are thieves and should be punished as such. Too bad that so many of us have to go through this headache, looking for answers and prove and wait… to get what is rightfully ours.
Thank you “admin Roberg” for taking your time and give us your expert advice.
Thank you for your feedback. At least I know Im not the only one looking, but I’m not looking for advice, I just want to know the law. That doesn’t necessarily need to be a lawyer, jus someone who knows it and understands it. ill keep looking.
Thanks for responding so quickly.
I speak to my son all the time and he and I meet frequently regarding all aspects of his college expenses. We developed a plan and talk often about the plan and what changes we need to do to revise the plan. I spoke with him to ask if he was aware that his Dad was expecting to do this and he is so upset, he called his father to let him know how unhappy he is regarding this act as well as other things his father have been doing that negatively impacts his future. Unfortunately, Dad is angry and his decisions hurt his son.
The question that I asked you is if you are aware of anything I can do to prevent this from happening a third time?
Hi Kristen,
I do not have a website for you to go to. I tried to get an attorney to do a blog about some of these issues on my website, but she told me that as an attorney–her ethics rules and regulations were so strict that she was afraid to answer anything on the internet. That’s probably why you’re having such a hard time finding legal advice. Sorry.
Hi Heriberto,
You need to have your ex sign a form 8332 permitting you to claim the children. Have her sign it for now and also for all future years. That’s the document you’ll need for the IRS. Good luck with our court date.
Hi John,
Sorry about the domestic problems. It’s possible that your daughter claimed herself–not that she should have–but college kids often do that, getting their parents into all sorts of IRS problems.
I’d go ahead with the paper file and sees what comes out of it. But that’s a judgement call on your part. But you have the tax right to do that.
Hey Dee,
a couple of things. First, clearly I was wrong about an ex not being able to do it again. There are lots of posts about that. Second, it might not be your ex–college kid–a very likely culprit is your student. I usually handle a couple of those every year. Ask your son first. If it’s him, he should amend his return and you should send a copy of it in with your paper filed return.
Hi! I just want to thank you for all your feedback and information, its one of the best ive come to find, with regards to any topic. My question is if you know of someone/ones that may have a question and answer website that offers information about child support and child custody. all website i find are inundated with adds for laywers and you end up having to pay to have a lawyer respond. I guess Im looking for free information, not necessarily advise, but legal information is very hard to find and/or understand, and it would be nice if there was something similar to what you have for that topic.
thanks
My sitiuation we went to court in Dec 2011 and the court document decree states that I can claim my daughter for state and federal taxes as a dependent and mother can claim her for other tax purposes. (mother is an illegal resident) how she files i dont get? But I went to file my taxes electronically by a professional on Saturday and was rejected stating someone else has claimed my daughter ssn. I know for a fact it was the mother we are in the middle of custody and have court this week. Her attorney provided her tax return with my daughters name and ssn which she was not supposed to of done. What will happen to her? She works one night a week is here illegally. what are the steps i need to take i have my print out forms and signed and i have attactched a copy of the court document decree signed by the judge?
Divorced in 2006. I have sole custody and the child has ALWAYS lived with me. All documents support. He visits his father periodically but there is NO issue related to where the child lives and who had the child the longest. My divorce decree has no provisions for taxes. In 2007 my ex claimed our child for 2006 and I sent in paper return, documentation and received my return as filed. I never heard from the IRS again about the incident.
My son is in college now and lives on campus out of state. I provided well over 50% of my son’s living and college expenses; however, when I went to file for 2011 my e-file was REJECTED again due to duplicate TIN on exemption and Form 8869 for education expenses. I realize I am going to have to go through the audit process again but according to your previous postings it appears once someone does this the IRS prevents them from fraudently filing again. Obviously, they did not block him from doing it again!!!!
According to the IRS, this issue is complex and they can not reject his taxes due to using my son as an exemption. This is a pain in the butt. Talking with him is not an option. He has never co-parented and refuse to talk to me about anything related to our child. What can I do to stop him from arbitrarily claiming my son in the future who is obviously not his dependent.
Hi again, thank you so much for responding. The paragraph about cs states four years of college which I still pay. The other section of divorcee decree just states every other year husband odd years. The other issue is my daughter worked part time and files her taxes so now either ex or my daughter might have the deduction on their taxes. I thought if child wasn’t emancipated divorce decree would stay in effect. My calls and emails to my daughter go unanswered, everything seemed fine, just over the last year she has turned on me. I never missed a single day of visitation and thought I treated her good. I’m the only one who paid and got her set up in college too.
Hi John,
part of your issue lies in your divorce decree–when does the arrangement for claiming you child end? Many end at 18, but some continue through college.
If you still have the right to claim your daughter, then you should. You know, it’s probably a good time to make the effort to make contact. I know it’s difficult–but really you should talk to her. She probably needs to talk to you too. If you’re paying child support, she probably needs information from you to fill out her FAFSA form to claim financial aid. Why don’t you pick up the phone, call and say Happy Easter? That’s all. Maybe call again later to get the tax information. But make the phone call.
Hi Graham,
You’ve got a really good question–who gets to claim the child care credit? The answer is–the child care credit goes with the parent that has custody of the child–not necessarily the parent who claims the exemption. Hopefully that will sort it out for you.
H i Paul,
You certainly have the right to claim your child for EIC and head of household. After that, it sort of depends upon your divorce decree as to who can claim the exemption. You might have a situaiton where you and your ex are “splitting” the exemption. Your divorce decree will have your answer. Here’s more inforamtion: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Hi, I’ve been divorced since 95, my divorce decree says I can claim my child in odd years. I have joint custody child lives with ex. My now 19 year old is a full time college student. I still pay cs I also cosigned student loan. My Child works part time and not sure how my child filed taxes as neither ex or child talk to me anymore. What about my 2011 tax return? Can I still claim her as a dependant and deduct tuition expenses? Thanks.
Thank you sooo much for your time and dedication on this forum! My question is this…. My ex and I have shared custody of our 3 children. We are to switch the children back and forth for deductions(2-n-1 and 1-n-2) Thus, last year she claimed the youngest two and I claimed the oldest. This year I claimed the youngest two and she was to claim the oldest. She is very irritated(putting it lightly) since she paid child care on the youngest she should get to claim her, I paid child care on the older two. Now I claimed the two youngest and ONLY claimed child care expenses on the older two, informing her she can claim her child care expenses on our youngest and claim our oldest as a dependent. She claims that she was informed that this was not possible. I want to make things right. The software I used allowed me to do this and instructed me how. Again I did not claim our oldest as a dependent only the child care I paid. Shouldnt she be able to do the same?
I divorced my ex wife in 1998 and it states in the divorce papers that we have joint custody living with each 50% and filling is every other year to each parent. My son has lived with me for the past 8 years full time we don’t share custody 50% of the time anymore,and the past four years I have claimed him each year without any trouble. My ex decided to all of a sudden claim him on “her year” and now I am being audited. If i can prove my son lives with me full time and I have supported him full time for the past 8 years cant I claim him.?
Hey Mary J–
The kids live with you when they’re not at school. It counts as living with you while they are at school too. You get to claim the kids. (And I so someday want to hear all about the mail order Ukranian bride! That’s gotta be a good story.)
Ah Lee,
You’ve got the magic 8332 form! You should be good and it should all be on your ex. There may be a little delay, but not like a full audit–you don’t need one. Smile and be happy.
Hi Angie,
Because your son is still in high school you can‘t file for the American opportunity credit anyway but in the future the parent that claims the exemption also receives the American opportunity credit.
I’ve looked over the IRS rules and I’m still confused. Here’s my situation:
Two kids, now 19 and 22.
Divorced in 2008.
Decree says I get to deduct the children. (The thinking at the time was that the ex couldn’t benefit because of the AMT. Ex makes about ten times as much as I do.)
Both kids are in college and they live with me when they’re not at school.
Ex has been paying their college tuition, but he bailed on my daughter’s for the 2011-2012 school year, and I paid.
Ex pays for the kids’ cellphones, health and car insurance, so his address shows up on a lot of their documents for that reason, but they don’t stay at his house more than a few nights a year. (Reason: they don’t like his Ukrainian mail order bride. Seriously!)
Q. Who gets the exemptions?
I’m thinking I should get the deduction for my daughter in 2011, at a minimum.
Boy have you been busy answering questions! Sorry but here is another, my babies dad claimed my daughter when he wasn’t supposed to so my taxes got rejected when I tried to do them electronically but we were told to do them through the mail and my babies dad and I would both recieve like a 11 page questionar regarding my babies doctors address/record ect but i i just recently recieved my refund check for the full amount, no scary 11 page questionar.. Whats going on?
My wife signed the 8332s for two of the three children per our child support agreement. However, she apparently had already filed and took the exemption for all 3 children before she signed the 8332s and before I filed. I got the e-filing rejection on the 2 children, so I mailed in my forms with copies of the 8332s and an explanation. I read in your article how an audit could ensue and take months. My question is whether my refund will be held up even though I am in complete compliance with the 8332 forms? Will it be held up until she completely resolves the issue by amending her return? I also read in your article that it would not help if she were to amend her return now? even before April 16th? I know she will drag it out for a long time but I have an over $11,000 refund being held up! It doesn’t seem fair just because she filed first and incorrectly she can hold up my refund.
Thanks! Your thread here is great!
When my ex-husband and I divorced, we agreed that he would claim our son and that I would claim our daughter on our taxes. The kids live with me full time. My son is now 17 and a Junior in high school. One of his classes this year he took for college credit. I paid the tuition and received the 1098-T form from the college. My question is can I claim the tuition adjustment (form 8917) since I don’t claim him as a dependent on my taxes.
So Corery,
My question to you is–do you have the right to claim your child? Does she live with you or her mother? If your daughter lives with you, then you need to paper file a return and go through the audit process to prove it. If you don’t have a right to claim her–your ex’s husband does by virtue of being the step parent.
I have been carrying my child every since she was born and she is 6 years old now, but this year her mother carried her and i believe she let her husband carry the child to keep me from carrying her. What can i do about this.
Hi Stacey,
I’m guessing that the IRS is just slow–but to be on the safe side, I would give them a call just to make sure that your return has been accepted and is being processed. The number is 1 800 829-1040. Yes, you’ll wind up on hold a lot and be transferred a few times, but it’s worth the hassle to know what’s going on for sure.
My son father claimed him on his taxes this year, an we have joint custody of the child, but he can only file our son on his taxes if i give him permission which i didnt. so when i went an got my taxes done, it was rejected, an i had to amend that,an the people at H&R Block said i had to mail it off an it will be atleast 6-8 weeks before i get my refund back, well its been over 8 weeks an i haven’t received anything. What do i do now?
Hi John,
Yours is a case where you and your ex can work together to maximize your refunds. I think it makes excellent sense for you to claim the college student. Talk it over with your ex. I recommend that she amend her return first, switching to claim your other child. Then once her return is accepted, then you file. You might need to submit an extension because her amended return will take some time for processing. With tuition being what it is–you two could probably agree to use the money for tuition.
But you’re right–the American Opportunity Credit is worth up to $2500, if your ex can’t take advantage of it, it makes a whole lot of sense to switch which child you’re both claiming.
Hey Jen,
Well you’ve got the attorneys going and that’s probably a good thing. As far as the IRS is concerned–here are my questions–
You got custody of your son–but does he live with you? I used to think that custody meant the child lived with you but I’ve got a bunch of letters saying “I’ve got custody but he lives with my ex….” so I’m more particular about asking that.
If he lives with you, and lived with you for over 6 months–well then there should be no issue whatsoever to you claiming him.
Now the court papers say the you get to claim the boy. So even if he doesn’t live with you, then you qualify for the exemption and the child tax credit (he’s still only 16, right?) so that would be yours to claim no matter what. If he lived with the ex, then she could claim head of household and EIC if she qualified.
I’ll defer to your lawyers about if the decree is considered to be a 2009 or a 2011 decree, but either way, according to IRS rules, the ex would need to sign a form 8332 to allow your husband to claim his son. I’m guessing that the lawyers will need to get that form signed so that you don’t have to go through this in the future.
Hi Diana,
Yes it is identity theft. Right now, the IRS doesn’t have a PIN identification for when children’s SSNs are stolen. Hopefully, someday they will have the same protection that they do now for identity theft. Until the laws change though, there’s no protection.
Hi Felecia,
I don’t know about pressing charges, but if the person who claimed your child is the biological father–I know the IRS tends to be easier on biological parents than they are on non-relatives stealing your child’s ID.
Anybody out there have some experience with this?
My ex claims our daughter on her tax return and I claim my son. This year my daughter is going to college and there is a fairly substantial refund under the American Opportunity Tax Credit that I could get on my income tax claim, but my ex can’t get because her income is over the limit. She has already filed claiming my daughter but I have not yet filed. I would like to split the tax credit with my ex but she would have to file an amendment (I believe) to change her dependent to our son. Is this possible and if so, should I wait to file my taxes until she files her amendment? Thanks so much for your input.
@ Rick,
Yes, he will be able to claim the kids if he has them for more than 6 months in 2012. Good luck.
@Lisa,
You need to learn about splitting an exemption. http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/ Your husband should be able to claim the exemption and the child tax credit and his ex should be able to claim head of household and EIC (if she qualifies.)
Here is my Question.. My husband has a child from a woman he never married. My Step Son is 16 now.. Back in 2009 we formally got visitation orders, part of that court order stated that my husband from 2009 on could claim my step son. In the summer of 2011 we went back to court and got custody of my step son. June 2011 is when everything was finalized. Now the paperwork from the summer of 2011 legally was just an amendment to the original so to our understanding the part of the original court order that stated we could claim my step son from 2009 on should still be in effect. But of course this woman decided to claim my step son anyways this year and we were rejected. We are currently contacting our attorneys regarding the matter but… trying to get a handle on what we should do for the irs to stop this and do you think we have a good case with this matter? Seeing as we have the legal papers to back us up?
I have been told by the IRS for the last 4 years that someone else has claimed my 4 year old son. They have not done anything about it so far. I believe it is my exs mother (we were never married and the child being claimed is not his) This year I have lived with my mother because i have been unable to find work so my mother has claimed my children. Is there anything I can do so they won’t use his social security number again? Would that be considered identity theft?
Hello,
This explain only a portion of what I would like to know. I don’t know for sure who claimed my child this year but I want to know if there is a way I can press charges against them?
I know its already illegal to claim someone you can’t, however who ever did this had caused me a serious delay in paying by bills off, which is costing me more money in interests. So with me actually pressing charges against them, especially if its her bio-dad, then I know for a fact he wont be causing me anymore trouble.
I was informed that the only way a person can use someone’s SSN is if they actually have the matching name so this leads me to believe that he was the one to do so, the only way he could obtain her number is through Child Support office, which I find that to be absolutely ridiculous that he get the right to have it. Especially since he has no involvement nor has any legal rights to her.
So i guess my question is does any know what I can do to press charges against the person who did this, or how I would go about doing so?
Thank you.
I appreciate your response AND it is somewhat what I expected…if there is nothing he can do to recoup these income taxes, the recourse he has is to go to court and get full custody! Now, if he does that “now,” he will have custody for more than half the year, so Jeff will be able to claim him for 2012?