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 ex and I have joint custody, he’s residential for school purposes. We share two sons. If I work full time, I claim one. He’s claimed them both 3x w/o permission. I pay support of $600/mo. This severely I packed arrears for me. I have worked full time the wole time. What are my options?
Hi Emerald,
It sounds like you are the one that should be claiming your child. So, file your return and claim your child. I recommend filing as quickly as possible.
Do you have an agreement that gives your ex the right to claim your son? If you do, then you’ll have to give up the exemption, but not the Head of Household filing status, or the EIC. But if you have not court order or anything like that saying you have to give up the exemption, then you don’t have to give up the exemption.
My sons father an I have a agreement between ourselves I have him Monday through Friday till about 10 an he has him Friday night threw Monday evening around 4.I have been in charge of my sons bills an responsible for clothes,babysitting,food an medical bill’s. With our agreement I do have my son more so question is there anyway I can make it were he can’t file my son on his taxes? I have filed for the last two years because he lives with me more but now my sons father is trying to get his social from me what can I do?
Hi Conrad,
First, try filing your return and see if she really did claim your son. If so, then you’ll want to follow the instructions I’ve put in the post above about paper filing your return.
Hello,
My ex recently told me that she has claimed my son on her tax return for this year 2015. I am unsure what to do, I am the primary custodial parent and my son has lived with me uninterrupted for the past 5 years. I have claimed him for the past five years without any problem from her and now since she started working she decides she wants to claim him to get a bigger return. He has not spent a single day/night with his mother in the last 5 years. She never sees him and now she is telling me that she claimed him on the return. What can I do? She is supposed to pay me child support and I have barely received my first check in five years, she is in the arrears for over $9,000. She told me that she would give me the money but I don’t trust her. If she does not follow through with returning me that money what can I do? I have two other kids with my current wife but want to know how to go about this before filing my return this year. Thank you for your time and knowledge on this.
Hi Sarie B,
I’m not an attorney, but let me repeat your question for you. You have a court order stating that the dad claims your son. Can you hear your question? Maybe I should rephrase it: You have a COURT ORDER stating that the dad claims your son.
Like I said, I’m not an attorney, but I’m kind of thinking that a court order means you need to do something. Like letting the dad claim the son.
I watch TV and on TV, if you don’t obey a court order you’re in contempt of court. Once again, I’m not an attorney and I can’t give legal advice but I’m pretty sure that’s how it goes in real life too.
Now, do you have custody of your son? Does he live with you? Then maybe, maybe you could split the exemption the legal way and you claim him for EIC and the dad claims the exemption. But I’d get a professional to help you do that. I’m thinking you’re likely to get yourself into trouble doing that so I’d rather see that your behind is covered on this one. When you talk about disobeying a court order, you definitely don’t want to fly solo on your taxes.
So, don’t disobey your court order. Get a tax professional to help you file the right way. You want to get what is yours without getting yourself into trouble.
I apologize for sounding snarky there. You don’t deserve snark, but when I re-read my answer that’s what it sounded like. Forgive me. I wasn’t listening with both ears. You’re not stupid, you know what a court order is- you were looking for a way around it. And there isn’t one. But – and this is what you really are looking for (I’m a little slow on the uptake, but I think this is what you’re really after, right?) how do you best protect your interests? Am I hearing you right now?
Okay, you’ve got a court order allowing the dad to claim your son. But that’s all he gets to claim is the exemption and the child tax credit. So you obey that court order, you fill out and sign the form 8332 allowing him to claim the exemption on his tax return for the tax year 2015. (And ONLY the tax year 2015, that way you have to fill out that form every year–just in case you never want to give away future exemptions.)
The reason you want to complete that form, is that it only gives him permission to claim the exemption and the child tax credit. You keep the head of household filing status and the EIC (if you qualify.) The 8332 is sort of a flag that he can’t get EIC. So you sign that form with a smile and you hand it over willingly. It’s kind of like a little insurance policy.
Granted, he may be sneaky enough not to hand it over to his tax person and he may try to claim EIC anyway. But you’ve completed the 8332 and you’ve done your part so the court can’t say you haven’t done your bit. Keep a copy for your records. (Always, always cover your backside.)
Now I do think you want a professional to help you with your return, but here’s a post about splitting an exemption: http://robergtaxsolutions.com/tag/split-exemptions-2/
I hope that’s a better answer for you.
I have a court order stating that the dad claims my son but it was.made.in September and under the.federal law I have the right to.claim the child can I or will I be in contempt of court.
Hi Andrew,
So here’s your problem: how do you prove that you are the father if you are not on the birth certificate? It sounds like you live with your son and you are providing his support, so that’s all good, but not being on the birth certificate is a problem. I did have a client prove his paternity with a blood test and the IRS did accept it. I’m thinking that’s probably what you would have to do.
Hello I’m in a current situation I have my son who had been staying with me since December of last year bit I’m not on the birth certificate his mother was staying with me also I worked since Nov 2014 to may 2015 I have had other jobs throughout the year just because my ex’s mom sent her daughter money does that give her any right to claim my son I don’t want her to is there anything I can do ?
Hi Donna,
I’m just an Enrolled Agent, I’m not a lawyer. It sounds to me like you could really use a lawyer. I mean, I can tell you that he shouldn’t be able to claim your nephew on his taxes – but you need more than that. This guy sounds like bad news.
Hi Amber,
If your ex files before you do, he may get away with claiming your daughter temporarily. Lately, the IRS has been holding onto suspicious returns so they may hold his for a few weeks if he’s never claimed your daughter before. (They may, it’s not perfect.)
If he does claim her, you know what to do, just follow the directions in the post. He most likely won’t be prosecuted for fraud. The IRS would just adjust his taxes and he’d pay a late payment penalty.
My ex boyfriend is a circuit clerk. We were never married. I was given my nephew at birth and my ex ( the circuit clerk) lived in my home for 6 yrs of the child’s life. He left in Nov. 2012. He never alone to us again until June 2013. I got cancer and him and his family begged for another chance. My son never lives with them but they bought him some clothes. He claimed my son for the year of 2013 then when my taxes got kicked back he ran an amended his. It held my taxes up til June of that year and he was mad at me. He has done all kinda if illegal stuff since this has happened. He ha wen sent the state police to my home to take my child and they told me he filed an illegal Eco and try we’re in my home illegally. I need to know if what he done is illegal. Can someone in a position as a circuit clerk do this and not get in trouble? Any feedback on this would b appreciated more than u will ever know. Thank u for reading this.
my daughter and I live in a different state than my ex. he has threaten to claim my daughter on this upcoming tax season when he hasn’t seen her in more than 6 months! we have joint custody while I have sole physical custody. can he still claim her if he files before I do? Also will he be charged with tax fraud if the IRS finds me in favor?
Hi Sarah,
It’s so easy to get worked up about these issues, but let’s look at it in a different light.
1. The bio mom’s partner cannot claim the child. So that’s not an issue.
2. Technically, the bio mom can claim the child and she’d be getting EIC based on her income (if she reported it.) Her EIC could be a few thousand dollars, so her only demanding $1000 is pretty cheap.
So, if you were to throw her to the IRS, I only see a big win for her and a big lose for your husband.
So unless she marries the domestic partner, he’s no tax threat. But if she were smart enough to claim her own income, she would be.
Now, here’s something to think about – the benefit to you an your husband for claiming the child on your tax return is probably less than $2000. As an attorney, your income is probably pretty high, and combined, you’re certainly out of EIC range. If bio mom were to claim her income, she could claim the head of household filing status and claim the child for EIC – which would most likely be more than $1000 to her plus start qualifying her for social security benefits – a win/win situation. Your husband wouldn’t need to pay her the $1000 and she’d get money!
Check this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
This might really help you both.
Hello and thank you in advance for any help you can provide!
My husband has a child with a woman who has evaded income taxes for at least 5 years. Bio mom works under the table as a nanny / family assistant for two families. She usually works 4-5 days a week.
Bio mom has a registered domestic partnership with her boyfriend, who does pay taxes. I do not know how much he earns. It is probably similar to my husband’s income. However, when adding my income with my husband’s, we most probably earned more. I worked dull time as an attorney until I went on maternity leave in March.
My husband and bio mom have always handled custody and support issues informally. There has never been a court order of any type. We have the child just about 50% of time, alternating days throughout each week. She sleeps at bio mom’s house more nights on average.
The parents split all expenses except my husband pays for his daughter’s medical, dental, extracurricular activities (Girl Scouts, sports, field trips, etc) and he pays PTA contributions, school photos, and her cell phone. My husband definitely pays more than half of the child’s overall expenses.
For years now, bio mom has demanded that my husband give her $1,000 from his tax refund, claiming that it was “only fair” since he has always claimed their daughter as a dependent (rather than allowing bio mom’s domestic partner / boyfriend to claim the child).
I have known about this arrangement for a few years and have thought it RIDICULOUS, but have stayed out of it. This year we finally got married and had a baby. Now that our finances are intertwined, I have said that we cannot give in to bio mom’s demands. If bio mom gets a legitimate job in the future and reports her income, we can reevaluate who should report the child or share the refund. As long as she is cheating the system, committing tax fraud, and continues to have unclean hands, she should not benefit from our refund.
Am I right? Is there any potential legal argument that bio mom’s partner has a right to claim the child?
I want to warn bio mom that she and the boyfriend can be audited / investigated for the years of tax invasion if she contests our right to claim the child and refuse to give her a portion of the refund. Is that a solid possibility? How likely would it be that the IRS would bother to audit her?
Sorry if this is jumbled. I am a fired up!
Hi Patricia,
Lots going on here. First, where does the child live? If the child lives with your ex-then why is her claiming the child costing you $7000? The exemption for a child would give you about $900 for the exemptions and $1000 for the child tax credit. Only if the child lives with you could you claim EIC.
If the child lives with you – then your ex should not receive Medicaid and food stamps and she should have to pay that back to the government.
But, here’s what you really need to know. She can claim the child for EIC and you can still claim the child for the exemption. Here’s a post about that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
If she’s getting food stamps, your ex’s income is probably so low that the exemption doesn’t made a difference anyway so all she’s really losing is the $1000 child tax credit. And since you don’t qualify for the EIC in the first place, you’re not losing something that was’t yours to begin with, but you are getting back what is your due.
Hi Joan,
Generally, claiming the exemption ends when the child support ends. But, go back to your divorce decree–what does it say? Does it talk about college? Some do.
Now, while you’re looking at the decree, does it say he has to pay child support in order to claim a child? If yes, that would be considered to be a “condition” and that invalidates his claim to using a child for an exemption also. See: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
So, unless you’ve got some state rule or something written in the decree allowing him to claim the kids after age 18, I think you’re on solid ground to fight this. Paper file you tax return and let the audit process begin!
But it’s probably worth a phone call to your attorney to check your local law about when he loses the exemption per your decree just to be on the safe side.
I now owe the IRS over 7000.00 because my ex wife decided she was going to claim both of our children even though through the courts the judge said I can claim one and she can claim one, Well needless to say she claimed him and I sent in the divorce papers showing the IRS and they said that since she had Government assistance on him all year 2014 (medicaid and foodstamps) then we have to pay back which I don’t think is right. I have claimed him every year since 2010 when we got our Divorce. She now admits she did it and swears she didn’t mean to ( whatever)
My husband has claimed one of our college aged children on his 2014 taxes. I had advised him not to and found out when we filed our taxes online. Child support ended with that child graduating in 2014 from high school. Since them he has not paid anything but health insurance. Both kids live with me and I pay 100% of their expenses and tuition and books. Our 2007 divorce decree allowed him to claim 1 child but does that continue when he is not paying their expenses and they do not live with him? Do I have to go to court to change this?
Hi Tia, (Alice)
The best way to stop someone from claiming your child is to file a tax return and claim your child yourself. If you have no income, you can still file a zero dollar return listing your child as your dependent. That at least flags your child’s social security number as not living with the other person.
Remember–it’s really important that your child really live with you before claiming him (or her!) You’re going to get letters from the IRS asking you to prove it, so don’t just do this because you’re angry at an ex. Do it because you’re going to win the case.
Hi, need advice on what to do … Ok, my ex boyfriend that I was with for about a yr and a half claimed my son, that’s not his biological son not once but I think twice… First time I know for sure he claimed him because of a text msg he sent me… It all started off with him asking me if he could claim my son, and since he has a friend that does his taxes she told him he wouldn’t get in trouble, since we were a couple at the time and I was pregnant with his child so I said ok and gave him my sons SSN but I ended up telling my friend about IT and asking her if I could get in trouble, she said yes and started explaining to me how. So I then called him up telling him not to go thru with it because I don’t want to get into any kind of trouble and to give me back my sons info. He said don’t worry my friend is going to make it look legit and that as long as the child is leaving at the same address as him everything would be cool, I told him no, we ended up getting into a huge fight and he said he lost the paper with the info.. Well wks later I received a letter from the IRS with his name.. I was pissed asking him why was he receiving mail at my place, he played the part that he had no idea why.. I opened it up, it was a past balance that he had owed the IRS and that was paid off by his income tax check.. He just kept denying it.. Well this yr he asks me again to claim my son, but only this time my our daughter was already born and wanted to claim both, and wanted both their SSN , but I told him no, and also at this point we had broke up and since I didn’t give him our daughters, he was pissed and told me “well I don’t need Js cuz its still in file from last yr when I claimed him” …. After that he stopped bugging me for our daughters SSN and that’s another reason why I think he claimed my son twice…i just don’t know how to report this…please help… Tia
Hello I have a question my ex and I were never married and I have custody of my boys but in court it was set for him to give me 500 a month but hi lost his job and he doesn’t care if he helps me or not he doesn’t help me with anything. But at the court the judge told him to give me 500 a month like I said and since March he haven’t giving anything and the judge also said that I could claim my 2 boys on the even years and my ex can claim my oldest son the odd years. My question is since he haven’t helped me at all since March until now he doesn’t even care he only provides for his daughter and not my boys. Can I claim my oldest son his 5 without me getting in trouble? I don’t see fair for him to claim my son even known his not even working he only goes to school and I work full time and decide not to go to school to provide for my boys. Please help I’ll appreciate!.
Hi Lis,
since you have proof that you were chosen as foster parents by a government agency then you have your proof right there. And, I’m assuming you’ve got plenty of proof that the children do in fact live with you.
Go ahead and file that paper claim.
Hi Dana,
Just because your divorce judgement says you are the custodial parent doesn’t mean you really are. I can’t tell you how many times of seen people with “custody” documents who haven’t seen their kids in years. (Nuts, right?)
Anyway, if you suspect you may have a problem in the future, the divorce decree will help, but make sure you can back it up. School records, medical records, a lease agreement showing your kids live with you. Stuff like that.
If your ex has your kids spend nights over at his house, then you might want to keep a calendar of the nights your children spend with you versus when they are with him.
If you think he’s going to give you trouble, the best defense is a good offense. Be prepared, and try to file your taxes as early as possible. (I hate giving that advice because that shouldn’t be the case, but a refund in your hands is way better than being in the right about claiming the refund that he’s got.)
I am just curious, if I have it in my judgment of divorce that I am the custodial parent and reserve the right to claim the child, will I need anything else to prove it? this has not happened to me yet, but my ex is a real doozy and I am anticipating this happening to me next year
Hi Jan,
We received our foster children through CPS in mid-June. They have lived with us since then with no breaks except sleepovers with friends. The placement wasn’t made official buy a judge until July. We are filing late as we did not get their soc. sec. numbers on time, so we did an extension. Now we find out that someone else has claimed them…
It was our social worker who suggested we claim them. I am assuming that as foster parents we count as “parents” to the IRS (though we are not technically licensed, but chosen through the kinship care/suitable adult route as we were known to the family) so what we need to do is show that they have in fact lived with us since mid-June. Am I right?
Thanks!
Hi Joseph,
You should read this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
I think when you claim the exemption, your ex can still claim head of household and EIC. If she did it right, you should still be able to file if you take you child only as an exemption. (People do this wrong all the time, but if it’s done correctly it works.)
Maybe this is the post you need: http://robergtaxsolutions.com/?s=splitting+an+exemption
I hope that helps.
Hi Ricky,
You should read this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
You can claim the exemption, but not the EIC.
You should also read this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
I think you might be able to handle this without going to court (expensive) just by paper filing your tax return.
Good luck.
Hi Jan,
The IRS doesn’t care about any kind of divorce decree that has conditions. If the children lived with you, and I got that impression, you’re good.
Hi Will,
You’re kind of up a creek without a paddle. Here’s a couple of things to know:
1. It’s FRAUD–as in go to jail illegal, if you file a tax return using your wife’s income and forge her signature. So please don’t do that. Seriously, don’t do that.
Okay, no I forget everything else, that one was so important.
Oh yeah, so she’s already filed and you’re screwed. (Sorry, but that can really mess up a tax return.)
This is my best recommendation: make nice. Seriously, be nice. Did you ever see the movie Roadhouse with Patrick Swayze? He’s training the bouncers in the bar and the mantra is “be nice.”? That’s your mantra. Be nice.
Explain kindly and gently how important it would be for you to file jointly. What did she get as a refund? You agree to reimburse her for whatever she’s losing by filing jointly.
What, she’d come out ahead filing jointly with you? great–you’ll pay her the extra. Whatever it takes. Whatever you do, be nice.
You need to be nice because this divorce isn’t settled yet and you’ve got kids. Remember, your kids are the priority here. You’re not just fighting for this one tax return, but all of your future tax returns as well. And, more importantly, you’re fighting for the future of your children. Always remember that.
If being nice fails. Then it might be time to not be nice. Since both you and your wife lived with the children for the entire year, the tie-breaker goes to the parent with the higher adjusted gross income. I’m guessing that that’s you. You would mile as married filing separately, claim the kids, claim the deductions (if you itemize) and let the war begin. But this is only a last resort. It’s not good for a “happy divorced family” situation. So, if you go this route, use extreme caution.
Remember: Be Nice!
Hi Lokesh,
I apologize but I am answering that question way too late. If you begin with an ITIN number and later get a Social Security number, you may amend your tax return and claim the child tax credit and other tax credits (most notably EIC.) But you only have three years to amend your tax return for a refund. You would need to amend your 2011 tax return by April 15 2015.
I’m sorry but you posted you question at the height of tax season and I’m not answering these questions (I’ve got to to tax returns so I can get paid and pay the mortgage.) I hope you got an answer someplace else and filed that amended return on time.
Hi Alan,
I think you have an excellent case. When one parent leaves the state, and doesn’t even see the child, it’s pretty hard to prove the child lived with them. You’re pretty solid.
Hi Jess,
Well here’s a question for you. What’s best for your kids? Now yes, you had custody for 9 months, but did they really live with you? I’m being a pain here I know, but why are the in-laws filing for custody? Were you not caring for the kids?
Seriously, the whole point of EIC is so that there’s money for taking care of your kids. Now going by the strict letter of the law, you had them for 9 months you should win. But–did you really have them? Did they sleep in your house or did you just have paper custody?
Are the in-laws going to use that money to feed and clothe your children or will they squander it away on drugs and booze? My guess is that if they were bad people, the court wouldn’t let them have your children. So let me ask you again, what is best for your kids?
As the parent, with more time (if they really stayed at your house) you have a right to claim them. But if yo’re taking food for your children off the table, are you really doing the right thing? I think this is one of those cases where you need to look into your heart and see what’s best for your children.
Hi La-Chanda,
My best guess is that your ex claimed your child again. Most of the time it’s an ex, although this year there’s been a whole lot of “non-ex” fraud so you need to be super careful with your child’s social security number. But best guess is your ex.
Now, to prove you paid your friend to watch the kids, just have her write a letter. Of course, he’s the kicker–if you claimed that you paid her to get the child care credit, then she should have reported that income on her tax return. If she’s not claiming the income, then you shouldn’t be claiming the credit.
So here’s the thing for her, if she reports that iincome, unless you’re paying household employee taxes (and I’m guessing you’re not) then she’s got to pay self employment tax on that. Now, even if she’s in the zero percent tax bracket, the self employment tax is going to be around $300 (unless she can write of her expenses.) So–don’t be expecting a letter from her to save you money if it’s going to cost her a bundle.
Now, you could pay her employment taxes–but that would cost you about $300. Here’s more information on the nanny tax: http://robergtaxsolutions.com/tag/nanny-tax/
@ Layne again,
I don’t care if he’s got insurance on your child, he’s not even living in the same state. You still win.
Hi Layne,
First, I’m furious that the IRS agent told you that since your ex filed first he got the money. Yes–he got the money, but you’re allowed to fight back and get what’s yours.
Now, first thing to do is print out your 2014 tax return and send it to the IRS through the mail. This is going to take time, and there will be paperwork, but you’re in the right and you will win.
Second, you’re going to amend your 2013 tax return and claim your child there also.
And, I believe that if you really want to push it, your parents might possibly amend and claim your child for his first year. That might be more difficult, your ex might actually have a real claim so I’m not positive on that one. Your ex left you when the baby was four months old. If he left you in say April and you lived with your parents for 8 months–they’re winners. If he left you in December and then you moved in with your parents, your ex wins. See how that can be tricky?
But definitely you should be claiming your child for this year and last year.
Hi Elizabeth,
You have custody, but if the order didn’t change who got to claim the exemption then you might have a problem. But not a 100% problem.
You have full custody so he would only be allowed to claim the exemption, not EIC or head of household. You should read this post: http://robergtaxsolutions.com/?s=splitting+an+exemption
Hi Mike,
you do it the same way as a parent. You use the court document showing that the child has been placed in your home. That will be your main argument right there.
Hi Stela,
Actually, you’re right. I’m sorry. When I wrote that post, I believed in the process. But as you’ve learned, it’s amazing how it happens over and over again. I have campaigned for PIN numbers for children – no deal. TIGTA, the office of the Treasury Inspector General has basically told the IRS the same thing. No avail.
I wish I had a better answer for you.
My ex and I divorced in 2003 and had a joint custody of our 2 children. At the time our Judgement stated that we will each claim one child but when the oldest child can no longer be claimed we rotate who claims our youngest child. In 2013 our custody order was changed and I was granted physical custody of both children and he only had visitation of our youngest child about 100-120 days out of the year. Since the change I claimed both children on my return and was denied because he did the same. We amended our return and sent it to the IRS and I was immediately awarded the EIC. This past year custody yet again changed and he only had our youngest child for about 48 days. Again this year he is attempting to claim both children even though I have already done so. He is stating that he is going to report me to the IRS because the 2003 order states he can claim a child. Can you please clear the air for me.
In regards to this:
“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.”
This is what I thought when it first happened to me but this statement is actually inaccurate. My ex illegally claimed our daughter 2 years ago and I went through the whole process of providing the IRS evidence that I had sole custody of her and “winning” yet he was still able to illegally claim her again this year and so I am going to have to go through this entire thing… again. From what I understand, even once the IRS determines that you are the only person who can claim the child, if someone else claims them and files their taxes before you do, you’re out of luck. It seems I’m going to have to make the mad dash to the accountant each year in hopes of beating him to the finish line. PLEASE tell me there is another way.
How do you do all of this when the child was removed by Child protective Services and the court has given you, the uncle, temporary custody. The child has lived with you for 22months and were told they could not claim him on their taxes?
Hello Jan,
My Ex-Wife and I have been divorced since 2013. We have one child together. She claims her for the odd years and I claim her for the even years per the divorce decree. She claimed her this year and they kicked my efile because of it. How do I handle this? The way that I think I read it is that if I mail in my taxes because she has her more then I do it will automatically side with her no matter the decree. I pay my child support and have her 156 days out of the year. If the IRS does automatically side with her, is small claims court my only option? Thanks.
I have a court order that says I can claim my child on my taxes even number years,my ex claims her odd number years.Its been like this for the last 8 years,well my ex claimed her this year(2014) she says by accident..Knowing her like I do it wasn’t an accident.My child does live with her 9 months out of the year and with me 2 1/2 months.She has custody of her.Do I have a legal right to force her to amend hers so I can file and claim my child since I do have a court order stating I claim her for this year?
Hi,
My ex in arrears on child support. In our decree, it clearly states that he cannot claim exemptions if in arrears. But, this year he filed, claiming at least one of our children. When I tried to file, I was rejected. So, now I am paper filing. Do you think the IRS will eventually allow me to claim all children, based on our decree? I have pages from the decree, and a court order from 2014 that details a payment plan to get him out of arrears in 2 years, that I will use a proof when the time comes.
I am in Illinois.
Thank you,
Jan
Hi, my wife and I split January 2015. We go to court April 14th. We were waiting on the lawyers to agree on us splitting the refund for 2014 before filing together. But the last time I checked with her she said she went ahead and filed. We have the right to file married. And it would help me. I’m sure she claimed both kids. What can I do? How do I find out her income for 2014 so I can file an amended? Can I file an amended without her agreeing?
Should I get an extension and then request the court to make her file married with me for 2014? Or to allow me one of the kids? I’m at a loss. Any help you can give would be greatly appreciated. 🙂
Can I claim a child tax credit of previous year 2011 now in 2014, which I did not claim on 2011 as my son does not have ITIN and applied first time in 2012.
I came here in US in Feb11th, 2011 and my wife and son joined me later on July 4th, 2011. My wife and I filed taxes, Married jointly as a resident aliens for 2011. My son is living with us here in USA from 2011.
His total days of presence in US for 2011 was 181 days. As per substantial presence test for a qualifying child his stay must be more than half year. Is 181 days stay more than half year and qualify him as a resident alien for 2011
When I filed a federal tax at 2011. I did not get child tax credit of my son as he does not have a ITIN at that time. Can I claim his child tax credit now?
Also If I amend my Federal Tax return do I need to amend my state tax too?
I can not believe your dedication to this. May god bless you. Here is my question:
We divorced in 2013. The original divorce decree said we have join legal and physical custody 50 50, one week with me and one week with her. We will alternate claiming the child every year. Two months after the divorce in 2013, she relocated out of state. The child has been living with me since 2013. She did not pay a dime for his raising. Today, i was filing electronically my tax, but it got rejected. She claimed the child while she did not see him at all this year and she did not pay a dime. I have a court order saying that the Child support stopped from my side and the mother relocated out of state. I have all his school records, doctors, therapy,,,,etc. Will i win this case if i submit it to the IRS?
Heres my husband and I’s situation. We had full custody of our 3 kids for 9 months in 2014 I went to file our taxes using turbo tax and efile like we did last yr this yr just to get rejected due to my husbands parents unlawfully claiming our kids for the EIC. I have proof they lived with us but the filed for full custody and has had custody since december of last yr my issue is we lived right acrossed from his parents so audit questions will be able to be answered correctly by his parents but i worked hard for my money and made 17000 in 6 months and now i’m out over 8k from my tax refund what do you recommend we should do. I thought of just filing without my kids but i would end up owing the IRS instead so now i’m in quite a pickle!!
I was audited and have to prove my children lived with me in 2014 and i paid $2000 in child care expense while I worked. The problem is a family friend watched my son what can i give to them to show that because there were no receipts. Also, what would be the reason I got audited other than someone else claimed them for tax year 2014? This same thing happened in 2012 but not 2013 and yes their father claimed them in 2012. Thanks so much for taking the time.