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 x and I have shared custody. 3 children. We alternate using children as deductions every other year as long as I’m current on child support. I’m current on monthly child support, we exchange receipts for medical, school ect to each other to be reimbursed half from the other party. I never get paid on the receipts I send her. I’ve been counseled to deduct what she owes from her incoming receipts. Now that I’ve done that, she says I am no longer current and refuses to give me the dependents for the tax year. 2 years ago I was 7 days late on my December payment and she took the dependents away that year as well costing me over 5,000 to the irs. What can I do about the he owes/she owes and actually be able to deduct my children.
Divorced after 2009. Decree says we have joint custody, ex wife gets income tax exemption. shared parenting. no custodial parent.
Child has lived with me since. She spends (at most) 2 nights per week with mom. I informed mom I would be claiming because child lives with me and I was told by IRS they don’t care what decree says..they care who has residential custody (me)
Was audited for 2012. Just received paperwork after my submission of all possible forms…that they want a letter from school stating my child lives with me. I have asked school. They refuse to become involved saying (truthfully) that they have NO IDEA where my child spends the night. My address and my ex-wife address is listed in school records. School does not KNOW where my child sleeps.
I have claimed my child the last 4 years as I AM the custodial parent as far as where my child lives. But the IRS is demanding a form of proof (letter from school) that I don’t have. I also don’t have a letter from doctor..as my ex does take our child to doctor under her heatlth insurance and i’m sure uses her address.
this is very frustrating..i called the IRS repeatedly and was told as long as my child lives with me over 50% of time I can claim. So I did. Now it looks as though my audit is going to be against me as I can’t provide the forms they need.
I have sent utlity bills, letter from employer, letter from landlord (very very old man not really a good letter), etc. EVERYONE knows my child lives with me.
What can I do?
Hi James,
Your ex has 70% custody. Unless your divorce decree says you can claim your kids, she gets the exemption.
But let me ask you this–you’re saying that you think your wife isn’t taking good care of your children. They’re not being bathed. The solution is not claiming a tax exemption for them now is it? Perhaps you should be back in court and claiming custody of those kids so they’re bathed, and fed, and clothed properly. At the end of the day, the issue is the health and well being of your children. Right?
So, if you get custody of your children, and they are properly cared for, then you will be claiming them on your tax return.
Hi. I want to ask. Me and my ex wife divorce 7years ago. M consistent with child support. I have 30% custody with the kids. They stayed with me two days every week. And my ex wife 70% custody five days a week. I pick them up everyday from ex wife house and drop them off to school since m living only 7minutes drive from her housever since we got divorce she’s the one claiming tax exemption with the kids. She’s earning around 45,000$ and m earning around 70 to 80,000$… When she remarried the husband has three kids. Already. What bothers me. Is that my kids barely have clothes and underwear. They are only allowed to take a bath once every two to three days. Coz for her to save water. M just so disappointed. I tried to ask this to her if we can compromise but she won’t listen.
Can I claim my kids tax exemption this time since she’s the one claming all this years
and my kids are now 10 and 9 years old…
Hi Grace,
You are to receive the exemption and the child tax credit–no head of household or EIC. That’s how it works when it’s in the decree.
Your ex should get the head of household filing status and any EIC if he qualifies. So, if you paper file, do it correctly and that way it will be easier to win. Technically, he should sign the 8332 form for you giving you the exemption. I recommend that you get that signed at one of your court meetings. No signature–hmmm, then what can you withhold?
I know that sounds nasty, but sometimes it’s like that.
Hi Robert,
Since your wife already filed as head of household you’re going to have your work cut out for you because you’ll have to prove it. And you say you’re not sure you can.
Here’s what I suggest–which might not be possible. Make nice with the ex wife. Sit down with her and work out what’s the best tax deal for both of you. Technically, you could each claim one child. (Not all the unreasonable for a family of two kids.)
Or maybe you claim head of household and let her claim the exemptions–the $1000 child tax credit may be nice and she doesn’t lose too much.
It sounds like you have much more to gain than she has to lose so maybe you can “make her whole” by paying her what she loses?
It’s easier to make nice than to fight, so that’s my recommendation. If making nice is just never going to work, I would hold off paper filing until I absolutely knew I could win.
Hi Terry,
So you have parents that are married claiming their child. Now it doesn’t matter how immature the father is, there’s no IRS ruling about the father’s maturity level. So if the father, who is married to your daughter claims his wife and their child on his tax return then you’re out of luck.
Now, if he claims a married filing separate tax status–then he can’t claim EIC so I’m thinking he filed jointly with your daughter. If he did that, there’s nothing you can do to win.
Now if your daughter is against the husband–then she can fight, but if they’re together, there’s nothing you can do.
If your daughter is on your side, then you can fight and claim the grandchild. You probably cannot claim your daughter, although here’s the publication to help you with that: http://www.irs.gov/publications/p501/ar02.html#en_US_2013_publink1000220877
The IRS favors the parent in these cases so if you’re going to win you have to have your daughter’s support. Without it I’d just pay the tax.
Hi Chris,
You have an interesting problem. First, yes, you can use your divorce decree to claim your child’s exemption–that should work for you.
BUT–if you want to claim EIC, then the divorce decree won’t work because it’s only the exemption it gives you, not EIC. But, if you truly had physical custody for more than 6 months of the year, then you should qualify.
So, I’d do the paper filing thing and gather up my evidence to prove the physical custody–like a court record where your ex said so, that would be good.
Good luck.
I guess I should clarify- it states that I can claim her. It doesn’t say specifically about the tax credit, or EIC, or anything else like that. I simply says that I am to be the sole person who can claim her.
My now ex-husband and I were married for the entirety of 2013 (I filed for divorce on December 14 but it was not granted until July 2, 2014). Because of the mess, I filed an extension for our taxes to be filed, so that everything could be sorted out, but he ignored it. Unfortunately for me, my ex has been absolutely NOTHING except a total migraine. I was called away for military duty from September 1, 2013 to December 12, 2013 and during that time, I had to leave my child with her father. I had no other alternative. I did retrieve my child after this, and we have not been living together since that point. My divorce decree states that I am to receive the tax credit for my child. My ex decided to ignore the extension and file his taxes, and he claimed my daughter. Now I owe a lot of money to the IRS, and was completely blindsided by it. I am not sure what to do, other than go ahead and have the IRS audit the return. Do you have any advice for me?
I have a question regarding head of household audits:
My soon-to-be ex-wife lived apart from me all of 2013. We have 2 children. In 2013, we had no formal or documented custody agreement, and it is unclear, in terms of documented evidence, who had the children for more nights (for this year, 2014, we now have a custody agreement giving me 47%, but in 2013, I believe I had them more). For that year, she has claimed head of household status. My question is this: if i claim head of household for 2013 just like she did, to whom will the IRS grant the status – her or me? She lost her job in Feb 2013, and lived off family gifts, gifts from me, and unemployment all year. I made considerably more in 2013, and for me, the dif in filing head of household versus married filing separately is significant in terms of what I would owe. I’d like to just file HofH, and wait for the audit, but I just want to know what is the likely result.
Thank you so much for your time.
While claiming our taxes for the year 2013, We noticed that we would owe the IRS approx $1700 before we claimed our grandson. After claiming him the IRS owes us $43 bucks.
We claimed my daughter (which is married to a very immature husband) and her son because they lived with us for 9 months in 2013.
The father who did not live with us decided to claim his son as if the son lived with him. He got the money from the IRS and didn’t share any with his son. I know we will be in a fight, but we know we are right about this one.
Thoughts?
Hey Kristine,
I answered this over here: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/comment-page-6/#comment-20819
Ok so I have a question. My ex husband and I got divorced in Washington State in April 2012. We have 2 kids. I have always had custody, and still do. They reside with me all year, every year but spend 3 weekends out of the month with him. He does have a job, and i do get the required child support witholdings from his paychecks BUT he owes more than 12,000 dollars in back support. In court, he was given the child tax credit since I am a homemaker. Problem is, he is having his girlfriend claim our two children so that he still ends up with money and it isnt taken out and given to me for back support. He will not admit to this and will not answer any questions I ask re: this matter. Is there anything I can do?
Hi Nancy,
What should happen is that the father should get a letter from the IRS saying that she shouldn’t have claimed the kids and he owes the IRS the money back plus penalties and interest. Also, what should happen is that his tax refund should get flagged to get held in case he tries claiming the kids again (even if he legally has the right to.)
What does happen and should happen aren’t always the same, but that’s what should happen.
I have custody of my 2 grandsons, since August 2011. Fall of 2013 father wanted custody back. Went with mediation and on Dec. 27, 2013 came up with a plan. It needed to go to the judge, which would be in Feb. 2014. The mediation plan fell through and I still have custody. In the meantime father claimed both children on his taxes. Not sure why he would do this as he has no custody and it never came up in mediation. I found this out when my tax preparer efiled and it was rejected. I then did the paper forms and mailed the tax papers to the Federal IRS and also State. In about 1 month I got my refunds from Federal and State, but he also got refunds. What will the IRS do about father filing false returns and getting a refund?
Hi Susan,
I’m sorry for responding so late. Your client has a signed 8332 but the ex already claimed the child. This is what to do:
Prepare the return with your client claiming the child (exemption only, no head of household or EIC) and mail a paper copy of the return to the IRS with a copy ofthe 8332 attached.
Your client wins this battle.
What the ex should have done was only claim the children for EIC and head of household, not the exemption. She messed up. Here’s more information about splitting an exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
And here’s practical information on how to so the split exemption: http://robergtaxsolutions.com/2013/01/how-to-do-the-split-exemption-when-preparing-your-own-return/
Hi Frank,
If I’m understanding your situation correctly, you’re all set for 2013–you paper fled and you got your money. (And fast too!) That’s great.
Your issue is 2012. You know that your grandchild was fraudulently claimed by his great aunt. Here’s my question–can you legally claim your grandchild for 2012? If the answer is yes, then the best way to bust the great aunt is for you to amend your 2012 tax return putting your grandchild on there.
If the answer is no, then about the only thing you can do is file a report. This is a link for more information on that: http://robergtaxsolutions.com/2010/11/how-to-report-tax-fraud/
The catch is, the IRS won’t tell you what they do with that information once you send it. (Because it’s all confidential.) The one thing you’ve really got going in your favor though is you actually have a copy of the fraudulent tax return and you can prove it’s false. Most people who want to report a fraud don’t have that kind of information. It makes your case easier to investigate and more likely to get acted on (even if they don’t tell you about it.)
Hi Dee,
There’s nothing wrong with working together to get the best tax situation for your family–and that’s what you’re doing. The reason the IRS is asking questions is because you’ve changed who is claiming the children, they’re just trying to make sure that you’re not committing a fraud–and you haven’t.
I would not claim head of household since the children’s father makes more than you do and you also live with his parents. Claim single instead.
Just send the IRS the information that they are asking for. You might wind up sending them a copy of the father’s 1040X also with a letter explaining the situation.
Usually, I prefer dealing with the IRS through the mail, but your case might be helped if you can go in person as a family with your documents and talk to a human. You don’t have to–but if there’s an IRS office that’s convenient to where you live, it might make things a little easier.
Bottom line, you haven’t done anything wrong.
Me and my baby daddy filed our 2013 taxes (he been claiming our 2 kids for 2 years) and after filing found out that if i was to claim the kids i would receive more back. So we both filed a 1040x, he took the kids off of his taxes and i claim them. Is that a fraud? I called the irs before filing the 1040x and told them the reason that i would get more if i claim the kids. They say it was okay for me to claim the kids. I got a letter from the irs wanting proof of address for the kids if they lived with me last year. Can I put me as head of house hold since I’m claiming the kids? Me and the baby daddy live together we both provide for our kids and pay our bills but we live with his parents. Well I haven’t got any letter saying if I’m being audit or anything about fraud. Should I just go ahead and send them what they want. Can I filed a 1040x more than once if I want to correct it so it’ll be how its been? I been so worried since I got the letter. Please advise!!!
i filed my 2013 tax return and put my grandson on a s a dependent, he and my daughter have lived with me since he was born, i have support him for the most part providing home, food, utilities, clothing ect. the father pretty much provided nothing he just mooched. the father also lived with us until June 30 2013. i called the IRS before i took my info to my tax guy and told them about the situation and to find out if i qualify, they asked me a bunch of questions and THEY determined that i was eligible for my daughter and grandson and that the father wasn’t, my tax guy also confirmed that i was so we went ahead and filed my tax return as stated above. My return was rejected, my tax guy said he submitted my return at 12:01am the first day they could be submitted so obviously someone else had a faster finger, The father? maybe, one other thing before i continue at the time and no part of 2013 was there a custody agreement with the parents of my grandson. of course my tax guy said we can paper file and then wait for the battle to start and i expect that to be soon, to shorten the story the other person who claimed my grandson could be the child’s great aunt (fathers side), i say this due to finding a copy of a 2012 tax return in my daughter dressing (witch he obviously left behind, Ooops!) with her name on it and showing that my grandson was listed as a dependent along with the form stating that the child lived with her for 12 months, this of course is not true, the child never spent one night there, the child’s father used to brag about doing his aunts taxes and getting her a lot of money back, witch he benefited from, neither the father or the great aunt had form 8332 signed by my daughter. as you maybe wondering these tax returns were efiled, its a shame that just because you can do you taxes this way that people think they can get away with cheating like this. i should also add that i did get my check in what i think is in record time, just under 3 weeks from mailing in my paper return. i’m wondering how to go about dealing with the 2012 tax return this is obviously tax fraud. how will they know who prepared the 2012 tax return
I have a question, if I have a divorce decree (2006) stating that it is my year to claim my son, but my ex already did…I can mail my returns in with a copy of my divorce decree, correct? Also, our decree states that I have reasonable and liberal parenting time…I had him for over 7 months of the year in 2013, can I claim the EIC? We are currently going through Friend of the Court to adjust my child support based on this and she admitted to the judge that I had him that much. I just didn’t know if this would get audited due to the way it’s worded in our decree.
Thank you for your help,
Chris
I have a case I am trying to find an answer to. I am just starting out as a tax preparer and have a case where a tax payer (non-custodial) came in with a signed 8332 from his ex wife. However, it turns out she has already claimed the child and refuses to amend her tax return. Is there nothing he can do about this because she is the custodial parent?
Hi Robert,
Let me see if I understand correctly: you claimed your own daughter who lived with you in your home for at least 6 months, right?
That’s not fraud.
You two should make nice and see what works out the best for both of you. You can amend your return, or maybe you can pay her what she missed out on. That might be cheaper than you amending your return. It’s worth asking.
me and my ex split up last year her and my 2 kids lived with me for half the year we are not married and do not have a coustedy agreement through the court I was gona let her claim the kids even though I have for the last 3 years I made a turbo tax error and it still shows one of my daughters as my dependant I did not realize this until her tax got rejected now she is furious I don’t want to lose money nor do I want her to is it easier for me to amend my return and get what I should have got or get my daughter removed my ex Is screaming fraud but I kinda do have the right to claim them this year at least idk what I should do
Hi Jacey,
Let’s take the worst case scenario–your ex produces a signed 8332 form that allows him to claim the exemption–that only gives him the exemption–you still keep head of household and EIC privileges. That’s the worst case scenario.
If that happens, then you’re going to sign the revocation of the 8332–which won’t help you this year, but will prevent him from using that next year.
Hi Tina,
I would wait until your receive your refund, then I would prepare an amended return adding your son as a dependent. In the explanation portion, state that someone claimed your child that shouldn’t have and that you filed with the other children so that you could receive your refund, but that you are amending to include your other child to prevent him being fraudulently claimed.
Hi I’ve read pretty much this while blog. What a great site! I like everyone here is going through the same issue. I did my taxes and was told that the irs has rejected my tax return due to someone else has already claimed my dependent. I have a feeling I know who it is, but I know that the irs can’t disclose who did it. I know I have all the documents that will give me the right to claim our son. I know that in order to avoid such issues a form needs to be signed. I have full custody and we only share legal. They see him every other weekend if that. So I know I got this. But just knowing, what games he plays I just have to think the worse. He’s already gone to this extent what makes this scenario any different… So in the worst scenario, what if he provides that form and I didn’t sign it, meaning he forged my signature. Would the irs know it’s a forged document or side with him and don’t even acknowledge my paperwork. I have custody, doctor visits, county heath insurance, and school enrollment history. I hope I made sense.
Here is goes.
I have been divorced for 16 years. My ex has not seen, talked to, or contacted my child in 15.5 years. I do sporadically receive child support which I assume is being garnished. This year when I filed my taxes it was rejected because ‘someone’ claimed my child. I understand this does not mean it was my ex, but for the sake of my questions let’s assume it was. Our divorce degree states that my ex can claim my son IF he is current on cs. Obviously he is not. When my return was rejected I panicked and went ahead and sent the return without my son as a dependent. I have 4 other children which I claimed and claimed them on EIC. Now as I research this I see that I should have mailed my return with my son as my dependent. What do I do now, what are the steps the IRS will take?
Should I send in proof I get no cs and a letter explaining everything along with a copy of the divorce degree?
thank you- T
Hi Justin,
It sounds like the Block person was having your girlfriend split the exemption–which is normally what I would do in a situation like that also. But here’s where I think you have a problem–the ex has the right to claim the EIC as he has a greater share of the custody. He should be the one to claim the EIC and head of household and allow your girlfriend to claim the exemption and child tax credit. He should issue the 8332 to your girlfriend, not the other way around.
He doesn’t have to–that’s just the “friendly” way to do it. He could claim it all. And he’d win. So, it’s a good time to be nice, blame it on the preparer. (Even if she’s innocent.) And agree to amend and fix it. But before you go amending your return, see if he’s okay with claiming the exemption and child tax credit instead of the EIC–he might be okay with that–it all depends upon his income and how that stacks up for him.
Good luck. Splitting an exemption is confusing, and I’m guessing that the Block person thought that your girlfriend had more time with the child (usually children stay with the mother when there’s a split.) But since the ex had custody from May – August–and then split custody–he’s going to win if there’s a fight. Sorry.
Hello Jan,
My girlfriend and her ex (they we’re engaged but never married) split towards the end of May of 2013. They lived together up til that point. After they split she moved in with me and until August of 2014 her daughter was staying with her dad and grandmother (the ex). When me and my girl moved in she and her ex agreed to do 50/50 exchanging their daughter weekly Sunday to Sunday. This has been happening since August to now.
Anyways, she filed for her taxes a few weeks ago with H&R Block and there was a message that came saying she could get the EIC as a non-dependent. The other message below said “The child is your son or daughter and your waiving the dependency exemption and giving it to the noncustodial parent”.
She ended up doing that which increased her return. In her and her exes agreement he was to be able to claim their daughter for 2013. Today is said he wasn’t able to claim their daughter and we’re wondering if we made a mistake by getting this EIC which she believed to be ok in doing so.
My girlfriend already received the money from the IRS, i’d be interested in your thoughts on this matter. I taken screen shots of every step we took. He’s threatening to get the IRS on us and if we made a mistake here it was unintentional.
Thanks!
Hi Meg,
So the question is–where do the kids live? I see lots of documents about physical custody and joint custody and to be quite honest, they’re garbage. The kids don’t always live where the documents say they do.
So, where do the kids live? And why do you think your taxes are wrong? If you think there’s a problem, take your taxes back to H&R Block and ask to speak with an EA or experienced preparer. Or you could call their national number at 1 800 HR BLOCK. You did not give me enough information to tell you if your taxes are right or not.
But If Block gave you bad advice, they should amend your return for you.
But
I was divorced in 2011, my ex was given residential custody, we had joint custody and I paid child support up until September 2013 ( I’m up to date on all payments)when I was given sole custody.. I took all information in regards to my case including my divorce papers when I filed my taxes to H&R block and was told I could claim both kids.. so I did.. was this wrong and whats going to happen now?
Hi Marc,
Ah–I have no clue. You’re living with your ex and your daughters, she’s not working but she filed a tax return claiming the girls and she’s not willing to work with you to fix it? Your problem is bigger than where to get your mail. You need a relationship counselor–or maybe a new roommate.
But I can’t help you with that. Normally I’d say give the IRS a different address–but your daughters live in your home–you kind of want to keep that address.
What I don’t get is how did your return get rejected already? The IRS isn’t supposed to be accepting returns until tomorrow. Weird.
Sorry I’m no help on this.
I live with my ex girlfriend and our 2 daughters. She stays home and takes care of the girls. while im at work. When i went to efile i was rejected due to someone claimed my girls. I found out that my ex filed and claimed them. She hasnt worked in years. but somehow still filed?? I tried talking to her about amending and avoiding an audit and possible fraud charges but she isnt changing her mind. I sent in my paper return. Im worried about not getting the audit papers, since she gets the mail. Help!!
Thanks!
Hi Carlos,
First and foremost, the IRS isn’t accepting returns yet. Some tax places tell you they’re filing returns–but the IRS doesn’t get them, so your ex hasn’t technically filed yet. (Knowledge is power.)
Anyway, it sounds like you have a pre-2009 court order on your exemption. That’s good. For you, you don’t need the 8332 form, you can just attach the pages of your decree that allows you the exemption. But–you have a problem–I think. You say you only get the exemption if you pay child support? Does the decree say that? If yes, then that’s called a condition, and if you have a condition in the terms, the IRS won’t acknowledge it. You’ll wind up having to go to court, not through the IRS.
So–you’re in a tough spot. The thing is, you can’t claim EIC, you can only claim the exemption and the child tax credit. She should send you the 8332 and still claim EIC for herself. Here’s a link about that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
Going to court is expensive, so I’d try talking it out with her first. The thing is–you’re in the right if you only claim the exemption and child tax credit–but because of the “condition” of paying child support, you’ve got no grounds with the IRS. Good luck.
I was never married to the mother of my child. I went to court and have made good with my child support payments and they are directly taken from my wages. I have a court order signed by a judge where the non custodial parent (me) is able claim my child as an exemption on my tax return as long as I have made all payments and custodial parent has signed off on waiver. The first 4 years she allowed me claimed my child and until 2009 she began to just claim my child without allowing me to send her the waiver form 8332. She moved to a different state and without my consent and she refuses to give me her current address. Can I claim her and let the IRS know she is refusing to give me her current address to mail out form 8332? She has told me she claimed her already for 2013. Please help
Hi Alicia,
So your uncle claimed your child on his taxes–but it sounds like maybe he shouldn’t have?
Unless you personally claim your child on your taxes, you won’t hear anything from the IRS.
Now, if you mean that you filed a tax return claiming your child and you still haven’t heard back from the IRS–my question would be — how long ago? It’s going to take some time. I’d give it 12 weeks at least–they are really backlogged.
If you’ve waited that long, then the next step is to call them and follow up.
Mu uncle calmed my son and I and i was unaware that it was illegal and i sent in the forms for him to return the money to the IRS ! but i haven’t heard back if they have received them yet so what do i do?
Hi Tanya,
You might want to check my post to Lori–the divorce decree doesn’t hold water with the IRS. Too many people use it when they don’t really have custody of their children.
In your case, you do truly have custody, but the IRS can’t tell that form the decree–because so many of them are just paper. What you’ll need to do is show the IRS that you really do have physical custody by showing them school and medical records. That should do the trick.
Hi Lori,
As you have proven so well, the court documents that say a parent has 50% legal residential custody are really just a bunch of crap. (My words not yours, you were so polite.)
No matter what–you have primary custody and you know it. No matter what, if you and your husband qualify for EIC, you should claim that every year. It’s your right as the custodial parent. The IRS is well aware that what a divorce decree says and what truly happens is not the same thing.
I would only claim the exemption on the years that you are entitled to claim the exemption–that way you are always in the right and never have to fear the IRS.
If your ex doesn’t pay his child support, he doesn’t do as he’s supposed to do–then too bad if the IRS seizes his refund. The best he can do–since your ex is only entitled to the exemption and the child tax credit–no EIC for him–the best he can get is $1000 for the child tax credit and if he’s in the 25% tax bracket, another $950 off of his taxes. If he even gets that much it’s only about 8 months worth of child support.
He can’t claim EIC–no way no how–he can’t claim EIC. If he does, that’s tax fraud. So if he’s lost a lot of money then he was claiming something he shouldn’t have claimed in the first place.
So here’s my suggestion. It’s a little b-witchy. Now you sound like you’re really nice so you might not want to be b-witchy. But I want you to go talk to one of your good girlfriends who’s not quite as nice as you. (Okay, someone more like me because sometimes I’m just not that nice.)
I think your ex claimed EIC. He’s not supposed to. His refund has already been seized to go towards your back child support. But that’s not his EIC–it’s yours. You and your husband should file your tax return not claiming your son for the exemption–but claiming him for EIC. I told you it was witchy.
So you get the EIC and the amount of back child support you get paid is reduced. But–he still owes the back child support anyway, he just doesn’t get it paid out of his refund which I believe he’s claiming illegally anyway.
So Lori, good luck and do think about what I’m telling you. Don’t let your ex intimidate you. You’re in the right and you’re holding all the cards.
Hi Kari,
Your brother was married to a woman who had a child from a previoius relationship. Now your brother and the woman are no longer together but your brother has custody of the child and has been raising him all by himself. You want to know if your brother has a legal leg to stand on to claim the child on his taxes.
YOU BET YOUR SWEET BIPPY HE DOES!
He has every right to claim his step-son. That’s what the child is, his step son. (Or here in my husband’s family, his “son” because my mother-in-law doesn’t believe in the word “step”.
But even without my mother-in-law he wins hands down. That child’s mother should be ashamed of herself. First she abandons the child and then she tries to make money off of it? For real? Your brother wins all the way around.
Hi Cindi,
You have a signed 8332 form that says your husband has the right to claim his daughter on his tax return through tax year 2012. That should be all you need. If his ex rescinded that 8332, she would have had to have done that a year ago for it to be effective for 2012. That signed 8332 form should be all you need to prove your case.
Hi Dawn again,
you probably already filed the FAFSA. Paper filing is still okay. It’s just that your tax return won’t be accessible by the FAFSA folks as quickly as if you efiled, that’s all.
Hi Debi,
Here’s your problem. Your daughter moved in with your ex in August. That’s 6 months. She was in school until May–did she live at your house during that time or was she on campus? If she was on campus–well then you’ve got a problem with the timeline. I’m not confident you can win this one. Sorry.
Hi Dawn,
You have a couple of different problems. First, your decree states that as long as you have three dependents your ex may claim one. He claimed one–the decree doesn’t say which one he gets to claim–so you may have a fight there.
Now–you say that your 18 year old wants his college tax credit. Here’s the thing, most 18 year olds don’t qualify for it. I don’t have enough facts, but usually–the teenager doesn’t qualify for the full credit and it’s best if it goes with the parent.
That said, I’m thinking that your ex did claim the college credit–it’s worth $2500 to him. I’m also guessing that he didn’t pay a penny towards your son’s tuition. There really should be a rule that says a person had to pay the tuition in order to claim the credit.
Anyway, if your son is going to claim himself, he’ll have to prove that no one else can claim him–and that will be tough. He’s better off if you claim him yourself, and you can contribute the tax credit towards his tuition.
Now, you’ll have to take a good look at the divorce decree to see if you’ll win this one or not. But if you don’t try you won’t get. I would claim the oldest and the youngest since you told your ex he could claim the middle child. Then, when he gets his audit letter asking”did you make a mistake?” and he calls you complaining, you’ve conveniently left him an out to claim the other child.
Personally, I think it’s a pretty sneaky thing for your ex to go and claim a tuition tax credit when he’s not paying the child’s tuition.
Hi Henry,
Your ex claimed your kid and you want to know if by sending the divorce decree along with your paper filed return will you avoid the audit. Good question. In your case, I’m thinking probably not.
Not because you’ve done anything wrong–I think you’re probably in the right–but it’s just I know what the IRS is going to be asking and the answers aren’t in your divorce decree that’s all.
But I would send the paper return and I think your idea of sending the highlighted portions of your decree along are also a good idea. Make sure you keep a copy, you’ll probably be asked to send it again. But be prepared for the standard audit questions in this type of case. Where does your child live? Where does she go to school? And who’s house did she sleep at for the most nights? It sounds like you’ll be able to prove your case so just be prepared for the questions.
About a month and a half ago we got a letter from the IRS saying we owed $2000 on our 2010 tax returns because our return was amended and we owe back taxes on my husband’s daughter. My husband and his ex have been divorced since 2000. We have physical custody of my step-daughter. She only with mom every other weekend (and sometimes mom doesn’t even get her). We pay medical bills and insurance. She goes to school based on zoning in our neighborhood.
We got a text this year from the ex saying that she and my ex had a verbal agreement that she was allowed to claim my step-daughter every other year. This is not true. So we send the IRS the divorce information that says my husband has custody. We get a letter from them saying we still owe the $2000. We send the information in the divorce decree AGAIN (that includes my husband having primary physical custody), we get another letter from the IRS saying the claim is denied and we still owe the money!
I have a final judgment from 2007 stating that my son’s father(we were never married) & I are co-primary residential parents and have shared parental responsibility with us equally splitting time with child, all insurance, medical & dental fees, and alternating the child tax deduction on a year to year basis. This all sounded good at the time, however, since the agreement my son’s father has not kept his part of the agreement in any way. He only sees my son 1 or 2 times a month, is constantly behind on child support, and has not given me a dime toward the child’s health insurance (which my current husband & I have solely maintained since the agreement). I have adhered to the agreement and have only claimed my son on my taxes every other year, however, he has failed to file & claim the child on his designated years. Well, this year when he decided to claim the child, his return was flagged by the IRS and they deducted the amount of back child support owed to me from it. I have not received this money yet, but he called me, so angry and blaming me because I “put him in the system” and that it’s my fault that he is not getting his tax money! Since he never filed for the odd years that were his, (according to our court agreement) now I am wondering if I should go back and claim my son for at least one of those years, as I believe we are entitled to it since the child resides with me full time. (he has lived with me since the beginning) In addition, when my husband & I went to file our taxes this year, we did not claim my son initially, because it was my exes year, and it turned out that we would owe money this year! That has never happened, so we put our return on hold to try to come up with the money. Since that time, we found out that his return was flagged, & we spoke to the tax specialist at H&R block again who had prepared our taxes & she advised that we go ahead and claim him for 2012 also, and mail in the return. Obviously, since he already claimed the child for 2012, this will probably trigger an audit, but I am thinking that this is what needs to happen. I have tried reasoning with him, and explaining that due to the fact that he is not doing what our court order states, which puts him in contempt, he should let me have the tax credit every year at the very least! I have not gone back to court to modify anything, because he is so abusive verbally, and I fought with him for so many years, that I just have tried to keep peace. I have found though, that there is no reasoning with him, and it is not fair that my husband and I work so hard and pay for everything, while he pays a measly $225 a month, never sees his son, and gets to claim him on his taxes! Grrr! I can honestly say that the audit would not go in his favor, as he could not even tell them my son’s teacher’s name, even though he does insists that he has witnesses that will testify (his friends) in court that he has the child half of the time. I have no doubt that an audit would find in favor of me, as I have maintained impeccable records from my son’s school as well as doctor visits because he has struggled with ADHD & we are very pro-active with getting him the help that he needs. I have 3 inch binders filled with his school and medical records. Yes, I’m one of those Moms 🙂 I guess my concern is that court document. I certainly do not want to do something legally wrong, but I believe that it is SO wrong that he claim our child since he does not live with him at all. I know that this is a very long post, and I apologize for the rambling. I would so appreciate any advice you could pass along to me! Thank you for this blog, for your time, and for your passion for helping others. You are awesome.
My brother married a woman with a baby that was not his. After a few years they divorced and she told him to take the child. He has had the child for 4 years with no support from the mother at all. She is also claiming the child every year on her taxes even though she has not seen, talked, or supported her son in four years. They live in different states. My brother is not the biological father but has had him in his care for all 4 years. Does my brother have a leg to stand on or is she in the right by claiming the child?