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 husband has been divorced for 9 years. He has two children. In the divorce decree it stated that she was to claim the younger child while he gets to claim the older child. At the time of the divorce, he had his exwife sign a 8332 which stated she gave up her right to claim his daughter THROUGH 2012. Up until now, it has worked out fine.
His daughter turned 18 in June, 2012. He paid child support up until that time and in November, 2012, she came to live with us. She was a student in 2012 and still is a student now in college. His ex told him that since she was now 18 she was claiming her even though she signed the 8332 THROUGH 2012.
When we efiled our 2012 taxes they were rejected. She had filed her taxes first and claimed both his children.
We printed and mailed out taxes in with a copy of the signed 8332. The IRS has had them about 6 weeks now. What do we have to look forward to. Will she get audited? Will we get audited? Will we have to wait for our refund until the IRS has completed their audits, if they do them?
Thank you for your assistance.
Also, in addition to my questions from 9:33 am today, how would this affect my son’s FAFSA? Would a paper filing/audit create too much problem for him?
I am struggling on whether to appeal the decision my ex made to claim our daughter as dependent for 2012 taxes. He’s already got the money & spending it. My taxes were rejected from turbo tax which is how I found out. She was in school full-time in 2012 and graduated in may. I feel confident that I can win, however she went back to florida to live with him and continue school towards a new degree in florda on 8/10/12. She has been with me since 2005 and have claimed her since then. This would be the last year to claim her and because she went to live with him in August. My daughter wants me to win, however knowing “his wrath”…..my question is – can he file suit against me in civil court and also if he has to pay back the money are there hefty penalties & fees involved?
I am so confused and getting dfferent stories from different people…
I have been divorced since Oct 2006. In our decree it says “while the parties have 3 dependents for tax purposes, (she) shall claim 2 and (he) shall claim 1 in even years”… I filed my taxes last week and it came back rejected because my ex claimed my oldest (18 last year). My son has not had contact with his father for 4.5 years, is paying his own college tuition and i have sole physical custody (we have joint legal custody). I have no problem with my ex claiming one child this year. I contacted him in January and told him I would claim the youngest and he could claim the middle child. He chose to claim the oldest, which loses my son at least $1500 in education credit. I cannot find out if my ex claimed the credit or not. My ex does not abide by the visitation schedule, my middle son has had no contact for 3 years, my youngest only sees him every other weekend. 1. Is it worth paper filing to create an audit… 2. would i have to claim all 3 children if I paper filed… 3. my tax person told me that the courts would refer back to our decree if my ex took me to court 4. how do i get my son his tuition credit?
Hi:
My e-file just got rejected because my ex claim our daughter in a year in which she was not entitled to claim her. I am entitled to claim her in even numbered tax years, this is the 2012 tax year. Apparently my ex has already e-filed and claimed our daughter. the divorce decree clearly spells out that I get even numbered tax years. Our actual custody is exactly 50-50 as my ex works 7 of every 14 days and I have her the days the ex doesn’t work. The divorce decree also sets forth that we have joint custody of 50-50. There is no way to actually prove the exact hours or days that each of us had custody.
Not likely that the ex is going to agree to pay me or amend. If I file it by mail and include a copy of the divorce decree with the highlighted portion of the agreement where it says that I am entitled to claim her for even numbered tax years, will that be enough to avoid the hassle of an audit for me or am I going to have to go through the audit as well. Any thoughts are appreciated
Hi David,
So DSS took your kids away and you still want to claim them on your taxes? Are you sure that it was your ex who claimed them? Maybe it was the foster parent who is caring for your children.
Okay, so if you really provided for your children–and here’s the issue–were you really supporting your kids if DSS took them away from you? But–if you truly were providing for your children–and they lived with you. You may still qualify to claim them.
But, you’ll have to be able to prove it. Get all of your ducks in a row. Follow the instructions I put in the blog post.
Hi I filed my taxes and was told my ex had claimed one of my girls I have been sole custodian of them both since birth they have always lived with me and my ex has never taken care of them or helped. This past year she called dss and had a investigation launched and now both girls are in dss’s custody but I did have them 7 months of the year. I want to dispute it but am not sure how any suggestions will be appreciated.thanks
Hi Gayle,
It would be a waste of time to go back to 1998. The IRS will only pay refunds back as far as your 2009 tax return–and you’d have to get that claim in by April 15, 2013.
Hi Ashleigh,
Your fiance cannot claim your son. He would have to have him for the entire year, not just more than 6 months, if he wanted to claim him. And, your boyfriend can not claim EIC for your son until you are married to him.
you speak of custodial parent not getting to claim their child, what about a non custodial parent that was divorced in 1998 and ex never let him claim a child. Can he go back and have them check with copies of the divorce decree
Hi there!
I was reading through your blog and saw something about EIC
Would I still be able to claim my children for EIC with my ex claiming them for the child tax credit?
I think you first response was harsh.
No one is trying to penalize my ex for serving our country.
they are 4-5 weekends in a month, if he misses one for a drill weekend he is able to see boys on another, he just chooses not too.
He has never been deployed, never on the front lines.
He makes significantly more than me so I would think from reading your posts above I may still be elgible for the EIC on the boys if he would be violating a federal law by claiming that when they weren’t with him over 50% of the time.
I have no intentions of violating a court order or being unfair to my ex who supports us.
Just want to do what is right tax wise.
Hi Dawn B.
It is a violation of federal law for your ex to claim EIC if he has not had the chidren in his custody for more than half the year. You are in the right.
That said, you might get an idiot for a judge. Make sure that you have a good lawyer. YOU ARE RIGHT!!!!
Hi Dave,
I think you’re smart to want to get it right from the get go. Every time I hear about a couple saying “okay, I’ll just pay your the extra….” Well, don’t expect to see it. And, you have nothing to show for it.
So here’s the thing–you’re the non-custodial parent, so you should get to claim the exemption and the child tax credit for one child. She needs to amend her return and sign the 8332 for you. That’s the right thing to do. Force her to get started out on the right track. It will be a hassle for her, but she’ll be less likely to mess around on this in the future.
Hey Keith D–
Your court order allows you to claim your son for the dependency exemption and child tax credit. Not EIC so if you went for that, you can’t have it.
Your ex should sign a form 8332 so that you may claim the exemption. If she won’t do it, you may need to take her to court.
Hi Jeremy,
Let me explain what custodial means as far as the IRS is concerned: Who is the child with the most time? When you get a calendar out and write your son’s name down on every date that he slept at your house–how many boxes are filled?
If you can honestly say that your son spent 183 nights sleeping in his bed at your house, then YOU are the custodial parent in the eyes of the IRS. We’re not looking at your separation or divorce decree here, we’re only looking at nights spent sleeping at your house.
So, if you have 183 or more–then you have the right to claim him.
Hi Jessica,
You warned him. That’s all you can do. Go ahead and paper file. It’s your right. By the way, you can go back as far as 2009 to amend old returns. Good luck.
My 2009 divorce decree says that he claims one child and I claim the other each year. I always claim only the child I am given in the decree for the child tax credit and then I claim both for the eic. He has them way less than half the year. I was just served with court papers in which he states I violated the divorce decree by taking the EIC. Could he have claimed the EIC had I not claimed it. I am almost positive that my tax preparer said that since they only lived with me more than half the year, that I am the only one who could haved claim them for EIC.
Hi April,
It sounds like your parents support both you and your children. That gives them the right to claim them on their tax return. Your ex does not have that right. Your parents may file a paper return and claim the children.
Hi, I had a question. My ex-wife and I have a separation agreement saying that we each get to claim 1 child every year on the tax returns (we have 2 children in total). I just found out this morning that I guess she misunderstood the agreement and had already filed and claimed both children on her returns last month. I am the non-custodial parent but have joint custody (I visit the kids every Wednesday and have them at my house every other weekend in additon to paying biweekly child support) and live in MA.
I don’t know what I should do, she’s saying that all I have to do is find out “what my return would have been” from H&R Block and she can pay me the difference but I don’t want to screw up my own return somehow by doing it incorrectly. I am in no doubt that by her claiming both of them this year it might cost me any refund I’m due or worse I might now have to pay the IRS back (!!)
Any advice you have would be very helpful and thank you!
ALSO. I forgot to mention all I have to claim him is my court orders to claim him as a dependent this year.
I have COURT ORDERS to claim my son this year and my ex claimed him FIRST.
I only have my son every other weekend. Will I be able to go to the IRS to get my FULL tax return? Or will I have to take her to court. And if I do have to take her to court, how do I do it? What should I file? And what should I expect? I live in Arizona.
PLEASE REPLY! I REALLY NEED SOME HELP!
You may e-mail me your answer if you want!
‘No I was paid support based on me getting the tax exemption. That is the issue I have.
And why you would think he is being discriminated against for serving our country doesn’t make sense. I don’t understand where you got that.
My ex-wife is the custodial parent for my 4 year old son; however I have him the majority of the time as set by our divorce decree. He does not attend school yet, because he just turned 4 in December.
I would like to settle this on our own, but I first would like to know if I am correct in believing I have the right to claim him. Thank you for any light you could shed on the subject.
I need help me and my wife are going through a divorce and when it came time for the taxes she already took and spent it all. We went to file together because she moved out in July and I have the kids half the week and she does I pick them up from school and have them untill six or seven every night and get them every Thursday, Friday, and Saturday. They told us at one place we were only getting back like $4500 and we was going to go get a second apinion. The next day she went done the taxes claimed both our girls head of house hold and single instead of married filing seperatly and then when I had a day off and asked her if she was ready to go do the taxes thats when she told me and left me high and dry. She told me we would split her check b/c mine is only $1200 back now the extra I pay in and we would split my check so its even. I found out she cashed the check and has spent all $8700 except $800 and told me I am out of luck. What can I do please help me.
Hi, quick question. I tried to read through all of these, and think I may know the answer, but would just like to confirm. As of 2012, my ex and I had no court ordered agreement for the custody of our son. In 2013 he decided to take me to court for joint physical and legal (for no apparent reason) we had been sort of doing joint for the past 6 years, of course with me always having him more. Normally whomever received a bigger tax check, would be the one to file, and then give the other an amount to even it out. Now with the court order, it says that I am to file even, and he odd years. I am a stay at home mom (I have a daughter with my fiancee). If I didn’t stay at home, my ex would have had to pay for childcare. Can my fiancee claim my son… and me for that matter? If he can, is there a way my ex can also claim him? My fiancee is claiming head of household because of my daughter. My ex is angry, and says this isn’t just something I can pass around. But my fiancee has supported my son for over half of the year.
Hi Becky,
I think you meant to say that you were paid child support based upon your ex getting the tax exemption–is that what you meant? If that’s the case, shouldn’t you let him claim the exemptions and you claim EIC?
Now, technically, you have the kids, you didn’t sign an 8332 so you’ll win with the IRS–but what about the court? I’m not a lawyer, I can only tell you about the IRS position–with the IRS you win. But I’m going to go on a ledge and warn you that you may have an issue with the judge.
It sounds to me like your ex is being discriminated against because he’s serving his country. I’m sorry, but jerking around the folks who are serving on the front lines doesn’t sit too well with me. Are you really sure you want to do this?
Hi Stephanie,
It sounds like you’ve got a great chance. The bottom line is proving that the children live with you by showing school records, medical records, and things like that.
Hi Milva,
I am not an attorney, I cannot give legal advice. I don’t have sample motions. Sorry.
Hi MC,
the IRS is saying 75 days. We’ll see if that’s the case, but that’s what they are telling us. You will have to provide your proof.
As far as preventing it in the future–they don’t have anything yet. Sorry.
I just recently found out about the law for the EIC. My ex-husband and I have been divorced since October of 2009. I am the custodial parent and he is the non-custodial parent. As apart of our divorce decree we agreed on rotating years of claiming our son on our tax return. However, I have been well unaware of the EIC rules. I attempted to do my tax return this year and it gave me the option to claim EIC based on the fact that my son has lived with me every day since the divorce and I am the primary care giver. My tax return was rejected by e-file because my son’s social security number was already used for the EIC. This year was also his year to claim the child tax credit and as a dependent. Now that I am aware that he didn’t have rights to the EIC; what are my options here? Just on a note, I have tried to talk to him and he just will not listen to me. I’ve told him that if I file with the EIC that he will be audited.
Let me add one more thing, the agreement actually says that we have joint legal and physical custody but the kids go to school where I live.
My ex and I separated in Oct 2011 and divorced in Oct 2012. I have primary custody and the kids go to school where I live. The divorce agreement says that I can claim my two kids every year. He gets the boys every other weekend and 4 weeks every year. He didn’t start to pay child support until September 2012. I have lived with my parents since the separation and they have provided all the support while I go to school except for child support, which $138 week. I wanted my parents to claim my children since they supported them but when they did they were told that someone had already claimed them. I’m guessing it’s my ex but he never contacted me. Two questions, can my parents claim my children with my permission and does he have a right to do that?
I have 3 children. All one Dad. 16, 12 and 6. The 12 yeard old is with me 100% of the time. We share 50/50 of the other 2 children but with his Navy travel schedule he misses custody regularly so the children are with me over 50/50. For the year 2012 I was paid child support based on me receiving the children as tax exemptions. When we went to court late 2012 the judge gave him the tax credit for 2 of the children and said I needed to sign a from. the judge has now left family court and we are postponed until June 2013. Since the Judge made the order late, and it is only a minute order my attorney interpretted it as going forward and so did I. Meaning I would claim all 3 children this year and he will get to claim 2 of the children 2013 and on. He also owes $4800 in back support that the Judge never said how he was to pay it. I plan to claim all 3 children on my tax return this year. Am i wrong in doing so? There is no divorce degree, no signed stamped court order and the judge was not clear.
My husband and his ex-wife got divorced in 2006 and she had primary custody, but starting in 2008 until 2010 the children lived with their father so he claimed them as it was agreed upon by both him and the ex. She moved the children back to Texas in June 2011 and claimed them for that year again this was agreed on. For 2012, it was a non-stop custody battle that resulted in my husband becoming primary with the “exclusive right and duty to prepare and file income tax returns for the estates of” the children (2) as of October 2012. The judge told his ex that she was not to claim the children at all for 2012 now that she was the non-custodial parent. We filed our return and it was rejected because she claimed the children. She was behind, and still is, on child support and has never paid for health care or dental care for the children only my husband and I have even when she was primary. And when she was primary she lived with her parents and did not work, so she provided no support for the children. Do we stand a chance at fighting this?
Do you have sample motion to file with the court for my ex claiming my children when it was court ordered that I would claim them? This is the second year in a row.
My exhusband and I have been divorced since 2007. in our divorce decree we have joint custody, but I am the residential custodian. He takes them every other weekend and sometimes an evening once during the week but not over night. It also states we each claim one child each as an exemption in our taxes. It does not state which child be we both agreed verbally at the time ( nothing is written) that he would claim our son and I would claim our daughter. I have never signed any form that I am reading about 8332 I believe its called. My ex husband said he filed this year and claimed both children saying that I had claimed them both they past 2 years and I looked over my previous years and Just as sure as I was that I didn’t the tax forms do not show me claiming both children, just the one we agreed upon at the divorce. I called and talked to the IRS and they told me I needed to mail my return in and it would be processed and that letters would be sent out. However, I am confident I am filing my taxes as properly as I should, is this going to delay my return much more than expected? Will I have to wait to get my return until I am able to send in the proof as needed? I just want to know what to expect. How long will I have to wait to get my return and is there anything else I can do in the future to prevent him from pulling another stunt like this ?
Hi Melinda,
Your ex can’t claim your child for 2012. He’s got nothing to stand on here. You win. I can’t say what will happen with your court case, but you should win with the IRS.
Hi Danielle,
I think you should contact the IRS and let them know you may be the victim of identity theft. Expalin the situation and ask them what you should do next. Forgery is criminal.
Hi Alysha,
Texas does recognize common law marriage so that’s in your favor–that would be the biggest thing I’d worry about but you’re good there.
As far as your ex is concerened, he won’t be going to jail over this. You will have to fight, you will win, and if he did claim your child then he will have to pay.
It is not illegal to claim more than three children on your tax return. But you can only get EIC for three kids.
Hi Marlin,
It sounds like your daughter is the victim of identity theft. She was a good candidate since she was out of the country.
You will need to file our taxes by mail and be prepared to prove everything. You’ve got your work cut out for you. Do notify the IRS that she has been a victim of identity theft.
My ex husband and I were divorced in ’10. We have 60/40 placement. I have the 60. Per our divorce decree, he is to claim in odd tax years only if he is current in payment of child support as of December 31 of the year in which he intends to claim the exemption. He claimed both of our children for ’12 and is also $7,000 in the arrears. I did contact the IRS and they advised I need to send in a copy of our decree, but from what you are stating, if you were divorced after ’09, the custodial parent needs to sign the 8332 form and the divorce decree doesn’t mean anything. I also filed an order to show cause and affidavit for finding of contempt with the court. Do I have a shot at winning this hearing and being able to claim our children for the whole year?
i think my ex husband may have forged my signature on a 8332 form. i have primary custody our 2 children. i never signed one of those form but he claimed the children in 2011 and i was rejected. he stated to me the irs knows he is claiming them every other year. how do i go about seeing if he filled out one of those forms and signed my name to it. p.s. he is a career convict.
We live in Texas, and my common law husband and I filed jointly claiming my son who lives with us for 2012. Our return was rejected saying someone had already claimed him as a dependent. I allowed his father to claim him in 2011, not because of court order, I was just being nice. Their return was garnished for the back child support he owed me and his father told me then that I would just have to let them claim him again this year. I never agreed to it, and there hasn’t been a discussion about it since. When I asked my son’s father and step-mother if they were the ones to do it she said she did, then recanted. This was all through text. She said they assumed I wanted them to since I don’t work. She then tells my I may claim him, that they only claimed her THREE children, that his SS number isn’t even on their tax returns, and that by law you can’t claim more than three dependents. She said they tried and were told no. His father texts me and says a lot of colorful things, but doesn’t deny that they did it.
I know that we will hopefully eventually get our refund. The proof needed to show he lives with me full time is all ready to go when we get the letter. What will happen to them? I don’t agree one bit with what they did, but I don’t know if I want them in jail. Can you really not claim more than three dependents? Could they have claimed a total of 4 if they filed separately then? I have so many questions and this situation just stinks.
Hi, 2 years ago I moved to an international country (dominican republic) to go to the University, I moved oversees with my two daughters one 12 now and other 19 now. I came to the states in 2012 stayed for about 6 months and my 19 year old daughter also came and stayed for about 8 months of the year. I went to do my taxes since I worked with my sister as a self employed and it came out that my two daughters were already claimed by someone else, the father says he did not claim. My question is my 12 year old daughter is international student and has not being in the state on 2012, how would this work. How would be the process if my 12 year old daughter has not been in the US for year 2012. Thanks
Yes you are right I should have been more clear. She also claimed the EIC and the court order says the custodial parent is the one that gets this credit.
ok, so , i have every right to claim both of my children (court order, they live with me 12 months out of the year, etc) I claim EITC for both children and we each get one for the Child Tax Credit…very simple…. except EVERY year , like clock-work, my ex files before he even gets his W-2 (uses his last check-stub from the year) well, this last year I found out he has been also claming the EITC for the child he gets the CTC for… I had to run all over gods creation getting papers (school, Dr.’s office, court house) to prove my case.. and guess what? they released my refund and I havent heard a peep from them… UNTIL today when I attempted to file for 2012… it was REJECTED AGAIN … I am sooo frustrated, I dont want to have to do this all over again… my question is why have they not blocked him from doing this again? what do i do? also, considering this is the 4th year in a row he has gotten away with it, what kind of repercussions is he going to face? thanks in advance!
Lisa,
You have a court order saying that the non-custodial parent has the right to the exemption and child tax credit. This current tax return is for 2012–that’s an even year.
Hi Tim,
You had your son for less than 6 months so you won’t get the EIC. But your court decree gives you the exemption–but you’ll need your ex to sign the 8332 in order to claim your exemption. Sorry but your only recourse may be to take her to court. I’m sorry.
My boyfriend was given full residential responsibility in 2009. The order State that the non costodial parent can claim the son even years for the standard deduction and child tax credit. We filed today and it was denied. We are going to file still to see what happens but does he have to still give her the standard and child tax credit where the order says it? She pays no support and only has him 2 nights a week.
My Ex and I divorced in 2010. In our final decree, it states that I will file with our boys until she makes over $17,000 per year. Since our divorce it has been her contention that she is the only one who can file with the boys. I understand the whole physical placement issue, but, even for the year that our youngest lived with me she tried to claim him. Now this year, I have legal custody of him, he lived with me from 1 January – 2 June 2012. He went back home to go to school with his friends and resided with his mother from 3 June – 1 October 2012. Now he lives with his Aunt from 1 October – present, and his mother provides 0 support for him. She filed her taxes claiming him and my tax return was of course rejected. What do I do???