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
Joanna,
It is not wrong to mark yes that the children have lived with you for the year. You are entitled to the EIC.
Laurie,
A child of divorced or separated parents is the qualifying child of the custodial parent. The custodial parent is defined as the parent with whom the child resides for the greater number of nights during the calendar year. Since they spend over 50% with you, you are the custodial parent. You have the right to claim your children.
The qualifications of HoH are that you are considered unmarried on the last day of the year, you paid more than half of keeping up a home for the year, and that a qualifying person lived with you in the home for more than half the year. Because the children did not live with him for more than half the year, he does not qualify for HoH. You should be able to file as HoH provided you paid more than half the cost of keeping up your home.
It was the correct thing to do to claim both your children – as you are the custodial parent. I would consider filing amended returns for previous years when you were entitled to claiming your children – but that could be a long and drawn out process that you may wish to avoid. And it could be very hard to prove since the time was almost 50/50.
My ex husband I share joint physical and legal custody of our two young children. His actual time with the children has increased over the past few years; however, they still spend just over 50% of the time with me. We have a court order that states I will claim both children as dependents and HOH. In past years, he’s gone ahead and filed his taxes before me, claiming both of the children as dependents – despite the fact that we have an agreement and the children spent less than 50% of the time with him. THIS YEAR, I’m going out of my way to try to file early. I did not file as HOH because he pays rent at his new home and I do not, and my understanding is that this situation gives him the right to file as HOH. I could be mistaken, but I chose to err on the side of caution. I did, however, claim both children as dependents. Was that the correct thing to do given the situation? Thank you!
I’m so glad I came across this site! I had no idea that my daughter’s father wasn’t entitled to the EIC these past couple times just because it was his (court ordered) tax year to claim her. Now, this will be the first tax year I’ll be claiming her since I’ve been married, and just so I do this the right way, I have a question regarding the EIC. Here’s my situation: My husband and I file our taxes married filing jointly, but we actually live in two different states (for work purposes). It’s just too expensive to commute, so we’re only about an hour from each other, and I know for the purposes of doing taxes the address we put down is more for correspondance than anything else, but my concern is the EIC questionnaire that asks if the child(ren) in question have lived with you all year (or most of the year, or something to that affect). Both of my children have lived with me, so my question to you is if, by putting my husband’s name first on the form and myself secondary, with his address, is it wrong to mark yes these children have lived for the year with this married, filing jointly couple? Even though they’ve only technically lived with one of us? It’s a joint return tho, so I’m massively confused!!
I haven’t found any literature to clarify this, so I really hope I’ve done well enough explaining myself. Thank you so much in advance for any clarification you can offer me!
Hi Lydia,
Of course you have a chance of winning! More than just a chance–you win. Here’s the situation: you are the custodial parent. Your daughter lives with you. What’s her teacher’s name? Does he even know? There’s a new requirement by the IRS–if he uses a tax professional like me, we have to have documentation that the child lives with him. What’s he got? Nothing!
Now–does the child support decree give him the right to claim your child? I’m guessing that it doesn’t, but if it did–you still get to keep the EIC and the head of household designation. He would only get the exemption and the child tax credit. But that would only be if there’s something in the decree that allowed him to do it, and even then you’d probably have to sign a form 8332 to allow him to do it.
Now–he’s not allowed to claim your daughter, but the reality is that he might try anyway. So be prepared to have your refund delayed by 75 days. That’s what the IRS says will happen to returns where more than one person claims a child. Just be prepared for a delayed refund–but remember, you’re in the right so stand your ground.
My ex and I never married but we have a daughter together. I have full physical custody and we share legal custody of her. I claimed her for taxes last year, and he told me that he wanted to claim her this year. I said no. But he says he’s going to do it no matter what. She lives with me, I make school decisions for her, make medical appointments for her, dentist appointments for her. He pays child support for her every two weeks (court ordered). He sees her twice a week. But does not really make any decisions for her. He says that he’s going to file his taxes and claim her and does not care about what I do. Do I have a chance of winning this?
Hi Stacey,
File your taxes, claim your kids. You may have a problem, but you’re in the right. Don’t count in seeing your refund any faster than in 75 days. I’m assuming that your children live with you, in which case you’ll win. It could just be slow. If he”s trying to claim the Earned Income Tax Credit–he’ll need to provide proof, such as school report cards or medical records. It’s going to be harder for him to claim them if he doesn’t have custody.
For the tax year 2010 my ex claimed the kids, so I did not. I was afraid that if I did, after he did, that I would be in trouble. After speaking to my lawyer, he referred me to an accountant who wrote a letter to the IRS, amended my taxes. I was allowed to claim them, and I received a refund. I do not believe that my ex filed taxes last year, as he didn’t work. So, again, I claimed the kids. This year, he told me he’ll be claiming them again. Which, there is no agreement in place, I provided all the support for them in this last year, so as usual, I was going to claim them. What is going to happen now? There was no audit before, I suppose it had to do with the letter the accountant wrote? I just want to file my taxes, claim my kids, and NOT have this be a long drawn out mess.
Thank you for your advice. Hope you have a good year!
Thanks Dana,
yes, you should amend but only 2009 and 2010. The 2008 tax year closed so you won’t get that money. Sorry.
Thanks for the advice. I was pretty sure that was what I needed to do, but didn’t want to do anything before being positive. Just one last question, does this mean I should admend my taxes from 2008 and 2010 to claim the EIC? Thanks so much for the help, this is a helpful website and I’m sure many people are thankful for it!
Hi Dana,
You need to see this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
The bottom line is that you’ll win with the IRS. It will be long, drawn out, and a pain in the behind, but you will win with the IRS.
Now, he may go back and try to go through the court system, I can’t advise on that. (My guess is he’d lose since he wasn’t current, but that’s a guess.)
Now, I would claim your son for 2012, but be prepared to wait 75 days for your refund. (That’s what the IRS is saying it will take when two people claim the same child–we’ll see how things really turn out.)
Good luck, don’t be intimidated. You’re in the right. If he wants to keep his rights–well then he should pay his child support.
One more thing–you realize that you still get to keep the EIC even if he does claim the exemption, right? If you haven’t been claiming your EIC, you should read this: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
Hi Jill,
Fair warning. You’ve got a hassle on your hands. Doesn’t mean you’re wrong, but you’ve got a fight ahead of you.
Stuff you need to know:
1. the paying of child support counts as a “condition” and that kind of screws up your early claims, but helps on your later claims. Here’s a link that will help explain what I’m talking about: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
2. Both of the children live with you full time right now so I say claim them for everything for 2010 through 2013.
3. Now, for 2008 and 2009–I’m guessing you don’t stand a chance at claiming anything. You should be able to claim one child for the exemption and child tax credit–but I’m guessing the ex claimed everything.
I would suggest talking to her–but it sounds like that’s out of the question.
Now, for 2008–you’ve already lost out on any refund that you could possibly claim, so if you’re at a zero balance due or have a refund for 2008 without the kids, I’d just leave them off of that one.
2009 is another story–the refund is still available up until April 15th. I’d send the ex wife an 8332 form for both 2008 and 2009 for each child. Use certified mail, return receipt requested to prove that you’ve attempted to contact her.
Here’s a link to the 8332: http://www.irs.gov/pub/irs-pdf/f8332.pdf
If she signs, well then you know which child to claim–only the exemption and child tax credit. If she doesn’t, you might try claiming the oldest and see if it goes through. If she did her return correctly, one of those children should be available for the exemption. My guess is that she claimed everything and that you’ll only be able to settle in court, not with the IRS. But it’s worth a try.
If claiming the oldest child is rejected, then try the younger. But don’t be surprised if you lose this one. But for 2010-now, I think you’re free and clear to claim the kids. Good luck.
Hello, I have read through all the posts, but wanted to be 100% sure of what I needed to do. My ex and I (we were never married) had a parental plan wrote up in Aug of 2008 that ordered us to alternate years claiming our son as long as he was current on his child support. The order does not indicate that a form 8332 needed to be signed. I am the custodial parent, my ex only gets our son every other weekend and two one week periods in the summer. My ex claimed our son in 2008 and 2010, he was not current on child support in 2008 nor is he current now. I spoke to him about me and my husband claiming our son for 2012 seeing as he is behind in child support, in response he got mad and proceeded to cuss me and threaten me. I was hoping you could tell me what I need to do? From reading it seems I should try to claim our son and if denied file a paper return, which will result in an audit. Is that correct? And what can I do to admend my returns from 2008 and 2010 so that I can claim the EIC?
I have a questions regarding my husbands taxes and claiming of his children (son 14 & daughter 13). In 2005, The children’s mother was issued joint-joint primary care (and they lived with her more then 50% of the time). The 2005 divorce degree states…”the respondent shall have the right to claim one child as a dependent for income tax purposes beginning with the year 2007, provided that he is current on all of his child support obligations on December 31st…” She has claimed both children from 2007 until 2011. The mother was unable to take care of the children so they came to live with us full time in July of 2010. We live in Arkansas and the mother lives in Texas, so they barely see her, and she makes little effort to stay in contact with them, and has not paid any child support. She will not communicate with us at all, so trying to work something out with her is useless.
Modification of residence was issued to the father on July 2010 with the courts. My husband has been behind on his taxes so he just filed all of his past taxes starting with 2008. Based on the Divorce degree does he have the right to claim at least one child during the years of 2008-2010, since he was current with all his child support payments at that time? Since the children live with us now full time, can he claim both of them from 2010-2013 since she is not current with her child support payments?
Thanks for your help!
Sorry Elizabeth–
But your husband’s ex has done everything right. Your husband has a permanent order to claim the exemption–but not EIC or head of household. Because his ex has custody, those belong to her now.
By her signing the 8332 form, she was allowing your husband to claim the exemption for his daughter–(which she could possibly fight in court and win–but she didn’t, she was being the good ex.)
Please note that your husband has a permanent order to have his daughter live with him–but he didn’t uphold his end of the bargain. Be grateful that the ex is trying to do the right thing by your husband.
My husband has 2 kids from his previous marriage. He got divorced on April of 2008, permanent orders ruled his daughter will live with him and his son with his ex, permanent orders also indicated that my husband shall be allowed to claim his daughter and his ex should be allowed to claim his son. In 2011, parenting time changed and his daughter went to live with his mom, now my husband only has the kids on the weekends, which makes my husband’s ex the “custodial parent”. At the end of 2011, his ex sent us a form 8332 where she indicated she will file my husband’s daughter for 2011 tax return and all future years, but permanent orders say my husbad should be allowed to claim for his daughter. A child support hearing took place this past august and child support was modified effective May (May was when the motion was filed), my husband’s ex claimed she is only working 20 hrs per week since she is going to school, so basically my husband ended up paying even more cuz court granted only 20 hrs of work for his ex, which means he is the one paying/spending more on kids even when they spend the majority of the time with their mom, and since child support is deducted from my husband’s wages, a little more is being taken out per paycheck since back child support is owed, but he has never stopped paying any child support, the child support enforcement unit took over 2 months to modify the new amount in my husband’s wages.
My questions is… can my husband’s ex claim their daughter krystal, even when permanent orders indicate otherwise and even when my husband is spending/paying the more $ on the kids since his ex is only working 20hrs a week?
My husband never signed any form 8332, nor any realease of exemption.. can he go to the IRS offices here in CO, take the permanent orders with him, his paystubs prooving he pays child support and have IRS fix this so everything goes according to what permanent orders say?
Hi Nell,
I have a short answer and the long answer.
Short answer: your daughter’s husband will have the right to claim the children on his tax return.
Long answer: But—there’s a possibility that you could claim the grandchildren if your daughter and her husband allow you to—but there are rules.
Here’s the thing–you’ve had those kids for 11 months. You are the grandmother. So if there was not the issue of the husband, you would have a legal right to claim the children. (I’m assuming that you meet all the other rules, etc.)
But–and this is where you have a problem–now that your daughter is married, her husband automatically becomes a parent to her children, even if he is not the biological father. So if he and his wife (your daughter) chose to claim the children, you absolutely lose—no exceptions. In a tiebreaker, they win.
Now, it might be to everyone’s advantage if you claim the grandchildren anyway. This of course involves all three of you agreeing to this. You would have to compare numbers and make sure it works for everyone involved. But there’s more to it that just you agreeing that you should claim the kids. The only way that you can legally do it is if your Adjusted Gross Income (what you make) is higher than both your daughter and her husband’s. That’s separately, not combined. You only have to make more money than him. (In case she had a little income too.)
They made that rule to keep rich people from scamming the system by letting their live-in grandma who makes a low income claim EIC on their trust fund babies. (Yes people really used to do that all the time.)
I’m guessing that your family isn’t wealthy and that you’re not trying to scam the system. (And your grandchildren probably don’t have trust funds.) But that’s the rule and it affects everybody.
Now, even if you all agree and meet all the rules, you might have trouble getting a tax preparer to file the return for you. (The IRS has hit us with all kinds of threats about making sure people qualify before we file. If we mess up, we pay big fines and people are scared.) So here’s your back up—the proof that what I’m telling you is true. You want publication 501. The explanation to the rules starts at the bottom of page 14 and goes onto page 15. If you do claim your grandchildren, you might just want to put a copy of those pages in your folder with your tax return.
Good luck.
my daughter who is going to college and has 2 children who have lived with me all yr. she up and got married and moved and took the kids . both have dead beat dads who arent in the pic (neither was married to my daughter) can i still claim the children on my tax returns since they me lived with me for 11 months.or does the new husband have the right . my daughter had no income for the 11 months she lived with me
Hi Melinda,
My thought is that I wouldn’t want to be fighting you in anything. You dot the i’s and cross the t’s.
That said, you’ve only got 2 extra days there. You’re goint to have to prove it, but I think you can.
From a tax and IRS perspective, I think you’re good. Now here’s another issue–what is the “family” cost to you if you totally alienate the father or your children over $243? I think you’ll win with the IRS, but only you can tell how much you lose in family unity by fighting this. What’s your real cost?
Hello Jan,
I have some questions I hope you can answer:) My ex and I have two children, ages 14 and 16. In our original decree, the language states that I claim our daughter and he claims our son. We were divorced in 2004 and bumped along with only one problem with the agreement (2010 tax year I had to threaten him with claiming both exemptions if he refused to become current on medical expenses related to the children) we made. Prior to 2010, I had the children 4 nights, he had them 3 nights. We began alternating residential time back in 2010 with a parenting plan modification. We each have the children, one week on, one week off. Last year, my ex refused to pay medical bills for the children that amounted to $243. In our modified parenting plan it states that he must be current in child support and all medical expenses and extra curricular expenses related to the children by January 31 of the new year (in this case 1/31/2012). I gave him every opportunity to become current with 2 different emails two weeks prior to the deadline. The languare in the 2010 modification is as follows: The father shall be entitled to claim “son” every year so long as he is current in all support obligations, including medical and his pro rata share of expenses listed in 3.15 (medical and extra curricular), by January 31 of the year he intends to take the exemption. If father is not current in all support obligations including those listed in 3.15 then mother shall be entitled to claim “son”. The mother shall be entitled to claim “daughter” every year. Prior to the deadline my ex tried bullying me to sign the IRS 8332 form, releasing the exemption stating I would be in contempt according to his attorney if I refused to sign it. Of course I did not sign it because he refused to be current. I stated that he first needed to become current with his financial obligations before I would sign a release. Of course now he is willing to pay the amount he owes…I guess that is how much the IRS is behind. I received a notice from the IRS and he did as well about 2 weeks ago. When it comes to number of nights spent with each parent, I had the kids two more nights than he did for the 2011 year. My thoughts are he was either current or not current by the deadline. I gave him every opportunity to become current with respectful emails asking him to please pay the amounts that were still outstanding. When he failed to so, I excersized my right according to our modified parenting plan. It seems to me the language is there to minimize court cases. I do have all emails and documentation related to my requests and his refusals. What are your thoughts?
@Bill,
You’re welcome. Glad I could help.
Thank you VERY much for your advice… very appreciated. You provide a wonderful service that is clearly so helpful to so many… thanks again!
Hi Jessie,
Thanks for the update. The form you’re talking about is the 8332. Here’s a link: http://www.irs.gov/pub/irs-pdf/f8332.pdf
Now, you might actually have the kids more days–so you might not want her to sign the 8332 if you’re going to claim head of household and EIC. (Because if she signs the 8332, then you automatically don’t get that.) Or maybe you want to sign the 8332 for her–so she gets the child tax credit and the exemption.
Or–since you both have pretty much even custody–you both each claim one child. I don’t have a form for that. I do work with a couple who does that. They split the kids 50/50 and they each claim one child on their returns for everything. Of course, it only works if you’ve got cooperation. (I’m not sure you get much cooperation from your ex.)
There always “filing first” but that should be the last resort. Good luck.
Hi Bill,
Because you and your wife are still married, yes, you can each claim one child and later either she or you could claim both.
I actually have a couple that are married, they file separately and they switch their children every year. (I don’t recommend that, it’s just what they do.)
Your situation is very different from most of the other cases on this page. I want to clarify that so someone else reading this doesn’t make that mistake. So Bill–this works for your situation because you and your wife are still married.
Also, because you your dual alien status–you won’t qualify for the Earned Income Tax Credit–that’s what many of the posts on this page are about so if you’re looking at some of the comments on this page–they don’t apply to your situation at all.
I hope that helps.
sorry, I wonder if you would please indulge me one more time on the slightly off topic question!! have a brief clarification request re my previous question and your reply. (I am the dual status resident who is still with my wife and was asking about switching exemption claims for our kids between this year and next).
My clarification question is: my original question and your answer covered the case if I claimed both kids this year and my wife claimed both kids next year. Does your advise (that we can do this irrespective of tie-breaker rules etc since we are still together) still apply if I was to claim just one child this year and my wife claims the other this year, and next year she claims both and I claim neither (in fact I won’t even be needing to lodge)?
hi,
figured with the bunch of questions ive asked might as give the updte did the family court thing 10-4 and maintained my joint , and was actually in position to get more her lawyer was terrible, to the point of comically so, broke the mic stand, didnt know how to submit exhibits. but anyway im still in the position where it seems i will have to be either racing to file or prepared for audits, because she is just …. ok so this year im ahead by like four days but im sure she has made more , first six months or so i have printed calenders i made that show even physical dates pattern signed by her, but was thinking simplest way is to do the form where each of us signs off a child so i dont have to be involved with this money squabbling, i can print this just wondering if you could give the code again for that document and like do we sign each of ours in front of notary, and then keep the others signed release for future use or do we submit them to irs through mail and its kept on file , of course keep hard copy , thank you, also im in lpn school and will recieve about 4.5k loan mid december so that will prob bring up income level , taxable right? not sure its my first one
Hi Brian,
You need to check this out: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Bottom line–you’re in a tough spot. Your court order is in 2009–that’s the year that things changed.
So–if the issue was pressed, your ex would win as far as the IRS is concerned.
But, here’s what should be happening. You should claim the exemption and the child tax credit–your ex should claim head of household and EIC. See this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
You should not claim EIC or head of household. If you two split the exemption properly–then everything should be fine. But technically, your ex should sign over the 8332 form for you. It’s the right thing to do–you have a court order.
Hello,
Back in 2009 there was a court order issued between me and my ex since we were never legally married, which established joint custody of my daughter. My ex is the primary placement with me having the non-custodial. In the order it states that I am to take the child tax exemption every year due to paying in extra child support, which i opted to do. This has been going on for the past few years. Now that my ex has quit her job she called the IRS and they told her that she could claim my daughter. She stated that she faxed them the court order and they said that since she lived with her for greater than 50% of the year, that she should claim her.
Summarizing, There is a signed court order that she has obeyed till this year, It was dated Nov 2009, which is after the year that the IRS form was required, according to my attorney. He stated if the issue was ever pressed, I would just have to send in the copy of the court order, and there would be no issue.
I have never heard of the IRS giving legal advice on a state issued court order.
What are your thoughts?
Hey Daynah–
Don’t file with your last paycheck! That’s illegal! Sorry but you really need to use your W2.
Thanks very much for your advice… really appreciate you taking the trouble to answer even when it was somewhat off point to the existing thread… and it was relieving and confirming to read your response. Thks also for the link… yes, I have been reading up on dual status stuff!!
Thanks for your advice. Sounds like I better make sure I file with my last paycheck of the year….
Hi Daynah,
Okay so you are not living together for 2012–you were only together for 2 and 1/2 months–so your ex should not be able to claim the kids for EIC. Doesn’t mean he won’t try, but he isn’t allowed to.
If you want to be nice and let him claim the exemption and child tax credit–you can sign a form 8332 to let him do that, and you keep the EIC. (Or maybe your Mom since you’re living with her–it depends upon what works best for your family and who’s supporting who.)
Now here’s my tacky advice: file first. Sorry, I know that’s a tacky answer, but that’s probably going to be your best shot if you want the refund money.
But–there’s more. You need to change your mailing address. Think this through, if this comes to an audit–you’ll have to prove where the kids live. What’s their address? How do you prove that? You should really get your ducks in a row before you file. You say it’s nasty between you, so–get ready now.
Your kids are too young for school–what address do you give the doctor for their checkups? What about daycare? Are they on the lease where you live? Start lining up that kind of stuff. I’m thinking you’re going to have a fight on your hands, so be prepared.
Hi Bill,
I guess your question is a little off topic but I don’t have a better place for it. So here’s an answer for you: it’s perfectly fine for your wife to claim the chidren on her tax return next year even though you claim them this year.
You’re still married and working together as a family unit. There is no issue with you moving the exemptions of the children for your circumstances.
It sounds like you’ve done your homework about claiming dual status alien, but I’m going to attach a link to the IRS website just in case: http://www.irs.gov/publications/p519/ch06.html#en_US_publink1000222529
One thing–you mention whose AGI is higher for claiming the kids–in your case, it doesn’t matter. You should put the kids on the return that will give you the most benefit. All those rules about tie-breakers don’t matter to you because you and your wife are still married to each other.
Hi. My ex-boyfriend and I have 2 children together. They are 1 and 2 years old. We lived together. In 2011, when it was time to file taxes for 2010, we only had one child and were living together. I wasn’t working. So of course, he filed taxes and claimed our child and me. Well when I became pregnant with our second child, he kicked us out of the house and we went to live with my mom. During this time, I put him on child support and was granted support for my oldest child (at the time, I was still pregnant). He paid the support. When it was time to file taxes for 2011, we agreed that he could file our oldest child again and that my mom would file our youngest child because I was still not working and we were still living with her. I don’t know how much money he got back from claiming our child, but he gave me $700 or $800 of it. Around the time he got his tax money back, we reconciled and our children and I moved back in with him…..for only 2 and a half months! We are now over officially and things have been very nasty between us. We are living with my mother again. I just started working last month and have not made that much money. I am worried that my ex will try to claim our oldest child again….what can I do to prevent this? We no longer have the child support order. He gives me money every now and then for the kids or tries to buy them stuff instead of giving me the money. Also, I still use his address as a mailing address because I work in the city that he lives in, but my children and I live with my mother in a different town. Sorry that this is so long, and I hope that you can help.
Hi, I am not quite sure if this is the exact right place for this, but I have hunting for an answer for a while now, and this seems to be the most relevant, so I thought I would try here… hope you can help! The question pertains to claiming the child exemption for married filing separately, but there is a subtle variation to the theme as it does not involve divorce or physical separation and I have not been able to find an answer exactly on point.
I am a dual status resident for this year, ending up as a nonresident alien after starting as a resident. My wife and I are living together, and have been filing joint returns. She is a US citizen. We have to file separately now, due to my dual status (and we don’t want to elect for me to be treated as a resident). Due to the way our income was earned this year, it would be to my advantage to claim an exemption for our 2 kids this year (plus get the child tax credit), which I am allowed to do under the dual status rules for the period I was a resident. What I am trying to find out though, is that next year, when I won’t have to lodge a US return, but my wife will, can she simply switch to claiming them automatically on her return?
So I will be claiming them this year (my AGI is higher), and we would like for her to claim them next year (her AGI will be higher since mine will be zero as a nonresident with no income source in the US)… it seems this is quite possible when divorce/legal separation is involved and you file form 8332, but I could not find anything on point when we are actually still together… is there some sort of equivalent form to 8332 that we might need to fill? Do the tie-breaker rules have to be applied? Can we ignore those rules and simply voluntarily choose between us, and if so, do we have to let the IRS know via for eg. a form like 8332?
Thanks very much in advance for your help… I apologise for being slightly off topic for this particular blog…
Hi Jacoya,
First, I want you to read this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
That will help explain the exemption thing.
Next, read this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
That’s about how to claim your kids for EIC and head of household even though your ex is claiming the dependency exemption.
Now, if your ex is going to file for 2011–you have to sign a form 8332 to allow him to do it. That’s sort of your “power” to make him pay his child support.
First things first–have your mother send the proof that you and your baby lived with her. The sooner she does that the better.
Next–look at the court documents. If your ex “always” gets to claim your kids, then he does–but you still get head of household and EIC. He never gets that, unless he has custody.
Many agreements have the parents split claiming the exemption every other year–what matters is what your agreement says.
Splitting the exemption only gives your ex the child tax credit and the dependency exemption. Although the child tax credit is $1000 right now, it is expected to go down to $500 next year (although that could change.) If your income is low–you might not even need the dependency exemption. So for now–it’s not such a bad trade to get child support.
Perhaps in the future, when you’re making more money–you might want to take it to court. But for now–it’s probably a fair concession.
Make sure you read those documents to know what they say about who gets to claim your child and when–so you don’t make any mistakes. But remember–you get the EIC–that’s going to be important while you’re just starting out. Good luck.
I was also told that no matter what me and my ex will always have to split years as in one gets odd or one gets even. Is that true?
Hello, It has been nothing but I huge back in forth issues every since my children was born and me and my Ex broke up. For the year of 2011 I had to put my ex on child support. At the time I was not working and our court order said that he could claim the kids on his taxes if his child support was current. He paid nothing in 2011. His first payment was in January 2012. Since he did not support my children at all and I wasn’t working my mother claimed me and my two children on her taxes for she took care of us. My mom got audit do to the fact that my ex has claimed our son on his taxes. I don’t know how they let him do that if he was behind and didn’t pay a penny in 2011. He barely even come around. He got back around 5,000, but they took around 900 from him from child support. I don’t understand how he even got back that much. If he didn’t claim our son he would have only gotten alittle bit less than 1,000. My mother got audit papers in the mail and told her that all she had to do was show proof that me and my children stayed with her for over 6 months. We have been with her for all of 2011, Both of my children was born in that year, Since I will be starting work I would like to claim my own children,but was told that couldn’t even if I did started working. I’m the custodial parent. It seems I have no rights just because I have a child support order. I was told that I had to file a motion to the courts and that they will think about changing my court order. I didn’t know that I could be strapped away from my rights as a custodial parent because of a child support order that he is not even current on. I’m just so confused. Why is it that I’m not able to claim my own children? what are the steps to filing a motion with the courts? I have read a lot of your comments and you are very helpful. I learned a lot about taxes just from you alone. Thanks so much for all of your help and time that you put into other peoples issues
Hi Jessie,
Welcome back. You’ve got an excellent question. The answer is, yes–the IRS does take into account family court, not just divorce court. That said, your paperwork will be settled in 2012 so your paperwork won’t matter. There was a rule change in 2009. (Here’s a link if you’re interested: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/ )
The bottom line here is where the children sleep the most. And–and this is important–it doesn’t matter what the court document says, it’s what really happens. In real life, I see all sorts of divorce decrees that say the parents have 50/50 custody. I’ve even read one that specifically outlines what nights the child sleeps where. But the truth of the story is the child spent most of the time at his mother’s house.
So as far as the IRS is concerned–whoever the child lives with the most, no matter what the documents say, is who claims the dependency exemption (and head of household status, and EIC, and child tax credit–everything that goes with claiming a child.)
Now, parents that are no longer together may split the exemption. The custodial parent (whoever the child lives with) may sign a form (8332) to allow the other parent to claim the exemption. That way, the non-custodial parent can have the exemption and the child tax credit while the custodial parent keeps the head of household tax status and the EIC. Here’s more info: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
The court can order an ex to sign the 8332 (I’ve got someone who had that happen) but that’s going to be a major headache if you’re going back to court.
So (sorry, I’m rambling) your job is to figure out–really–where will your child live? Is it really 50/50 or is it really something else? Try to negotiate that now–and if your child isn’t living with you most of the time–then try to negotiate for having your ex sign the 8332 IN ADVANCE! It’s much easier to get it in advance than to beg for it every year. On the other hand, if you’re paying child support–that would be her weapon to make sure you pay. (A smart parent never signs the 8332 forever.) Here’s a link to that form: http://www.irs.gov/pub/irs-pdf/f8332.pdf
Hope this helps.
hello back again, i had posted before concerning my baby mamma drama 🙂 we have joint custody half half went to court couple years ago and ended up with joint but we never had the order signed last tax season she rushed out and claimed both children , she did have me by a few weeks over me , she is also trying for full custody the trial is the fourth, she is making exaggerated claims but her lawyer took i and my lawyer aside and offered to settle with everything split as usual just that she is listed as primary residence my lawyer is maybe newer to the scene so she doesn’t see the significance i spoke to my criminal lawyer who is also into family court and he says that’s the tax issues is most likely the only reason for her request for primary although we would still have them residing half and half. i have seen you refer to orders that stipulate who and when gets to file but my criminal lawyer said to me today that a family court judge cant make stipulations in the order that direct the ability to file taxes and that only marital court judges do that sort of thing, i was hoping the family court could so i wouldn’t have to deal with the instability of dealing with her , so simple i ask have you seen tax claim stipulations in custody orders or just in divorce orders? and thanks again
Hi Stephanie,
The IRS is right–the children both live with you. At least for purposes of claiming them for head of household and EIC, they’re yours absolutely.
You may have an issue claiming the exemption and child tax credit. It mostly depends upon how your divorce decree is written. If your ex is allowed to claim one of the kids without having to do anything for it (like paying child support) – it means it has no conditions and he’ll still be able to claim the exemption. If the divorce decress has conditions (like paying child support or insurance or something like that) then he can’t claim a child unless you sign a form giving him permission to do so. Here’s a link that might help you further: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Good luck.
Hi, my name is stephanie, and I have a quick question. My ex and I divorced in 2002, and in our divorce papers it states I get one child to claim he gets the other. Problem is he does not take them but for 50 days out of a year, does not pay any insurnace or half the cost of medical that is not covered. i have them full time, and pay 90 percent of their expenses. the irs stated he could not according to the irs guideliines claim the child being that they do not live with him for half the year. is this true, and will i be ok? Thank you very much.
Hi Matthew,
You’re standing on pretty solid ground. As far as the IRS is concerned–it’s not what the divorce papers say, it’s what you really do. In your case, you really are the parent that your children live with. That’s the bottom line.
If your ex files first and does claim a child–you have the right to paper file and claim them. You’ll probably have to prove you’re the custodial parent–but it sounds like you’ve got your bases covered.
Here’s my situation. I was granted full physical custody of my kids September of 2011. Their mother was granted half legal custody of them with rights to reasonable visitation.. Now I have had them full time from January 1st 2012 – today which is August 8 2012. She hasn’t taken them overnight at all. Doesn’t pay child support or help with any clothes or necessities. So the other say she started talking about how.shes going to claim one of the kids next year. So I told her she isn’t because she hasn’t helped with them at all. So were eight months into the year and they haven’t spent one say out of that time at her house. So here’s my question. If she ends up gaining half physical custody back by the end of the year do I still have the right to claim them both legally on my taxes? And if she does it first would I be able to go against her and win through the irs? I pay their medical and dental as well. I haven’t gotten one cent of help from her at all and I think she’s going to try to get half custody back just because she thinks if she does she can claim them. And I am the biological father. Thank u!
Hi Chris,
You have a good question. And I understand where you’re coming from–you pay for everything, you should get the exemptions. Unfortunately for you, it doesn’t work that way.
Under the tax law–the custodial parent gets everything–the head of household status, the child tax credit, the EIC and the exemption. You don’t even get a deduction for paying child support.
Now, what you might be able to do is to have your ex sign a form 8332–which releases the exemption of both of the children. (Or she can just release one.) But by signing this form–you would be able to claim the exemptions and the child tax credit for the children. But, and this is important–you can’t claim them if she doesn’t sign the form. So the sooner she signs–the better for you.
Remember–if you get to claim the exemptions, that’s only the exemptions and the child tax credit–you do not get to claim head of household or EIC. That’s important not to make that mistake–or you’ll be hearing from the IRS. Here’s a post with more information on that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
You can sign that form to release the exemptions forever–I always tell my clients never to sign that. But you can ask her to. But you should settle for having her sign for one year at a time. (I always tell people never sign unless all the child support is paid–that’s why you never release the exemptions forever.)
Now here’s a heads up for you–your ex’s boyfriend cannot claim your kids as his own for EIC purposes. I’m pointing this out because lots of guys try to do that. You say he has three kids already–but how many of them is he allowed to claim? Do they all live with him? If not–he could be in the same situation you’re in–not able to claim his kids. You just don’t want your ex’s boyfriend claiming government tax money for raising children that you’re paying to raise. Maybe he’s a straight up guy–but I just thought I’d warn you in case he isn’t.
Sorry I don’t have a better answer for you. Good luck, sorry about the divorce.
I was recently divorced 4/12. We have two children and we each have claimed one each on our previous taxes. The custody agreement is she has custody and i have them on thurs and every other weekend. I pay over $16,000 in child support a yr and she doesnt work and if she does its only for a week or two here and there. now that the divorce is final is it legal for me to claim both children on my next year taxes if she only made $1000-2000 for the yr i f that and im her only other income. She lives with her boyfriend who has 3 kids of his own.
Hi Maria,
To be honest–I’m really good at taxes. I’m not an expert on child support. Nowhere close. I think you have a good question though, but you should probably ask your lawyer. I’m not qualified to give you a good answer. I’m sorry.
Hi
i have a question….my husband has a daugther she is 12 years old his ex got married at the same year we got together. She never let him see his daugher wel ones in a wild and she never put child support till this year. and know my husband has to pay childsuppot for the last past years. Now my question is that some of the little time that we spent with his daugher she told us that her grandparent give her money because they were getting money for her my consert is that proplably the grandparent were claim her in their taxes because she is all the time wirh her grandmother.now if the grandparents claim her all this years and his ex is asking for chilsupport for the past years what can we do that she have the right to claim the child support even if she problaby she did not claim her in her taxes because the daugher never with her?
Hi Charlene,
Wow! Sounds like your predecessor is an interesting person. But when you take all the baggage out–the bottom line is that you and your husband had the children for more than 6 months of the year. And it looks like it’s going to be that way in the future as well. So–you get to claim the EIC (if you qualify.)
If you want–your husband may sign an 8332 to release the exemption for the kids to his ex–that would give her the exemption and child tax credit. But it doesn’t sound like he has to–that’s an option he has if he’s making nice with the ex.
The issue of who makes the most money isn’t relevant because you and your husband clearly have the children for more days than she does. Money only counts when your custody is a tie.
I think the ex should forget about trying to claim the kids. But she sounds like she might try it anyway so you should be prepared to prove your case. Sounds like you’re ready already–which is smart. Good luck, the rules are on your side.