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
Hi Crystal,
There are two options. One is to file a report with the IRS. Here’s information on that: How to Report Fraud
But I think the best option is to just file your own tax return claiming your child. You’ll have to paper file it, but that’s the best way to get something done.
How can I get my baby dad in trouble for claiming my child he has nothing to do with he to H&R Block that he raised my son
Hi Jeffrey,
First, make sure you do it right. Here’s a link about that: How to Do the Split Exemption
Technically, your wife should issue you a form 8332 which allows you to claim the exemption for your youngest child. She is still able to use your youngest child for the Earned Income Tax Credit – if her income qualifies her for that. You only get the exemption and the child tax credit.
This is important, she does have the right to claim the EIC and HH on your youngest child. That’s federal tax law. Your divorce decree can’t overturn federal tax law. You only get the exemption. I know, that’s weird but that’s the way it is. It’s possible that she has not violated the decree at all. (Most likely she did, but it’s possible that she didn’t if you overstepped your bounds when claiming your youngest child.)
So first – make sure that when you filed – you were doing it correctly. Second – if you’re doing it correctly, you need to make sure she understands that she can only claim HH and EIC – not the exemption and the child tax credit. Then she should issue you the 8332 form and amend her tax returns. (Only 2014 and later, you’ve missed the boat on the older returns.)
If she refuses to comply, then you might need to talk with your attorney. (That’s out of my league, I can tell you tax stuff, I can’t help with enforcement.) Good luck.
Hi Susan,
You might want to talk to your attorney. Personally, I think it’s a little lame to try to get money from you for 2011 – that’s a little old. If he were suing you for 2015 or 2016 – I could see that, but 2011 – 2014 – why didn’t he talk to you before now? But that’s not my place to argue, you’ll want to talk to your lawyer.
So I’m curious though, (remember, I’m not a lawyer so I have no legal bearing, I’m only asking questions here, okay?) He says he wants to sue you for all the money you got back for you son for the years 2011 – 2014, but how much would he have gotten back had he claimed the boy? Would it be the same amount? Also, if the divorce decree says that he was supposed to provide the health insurance coverage for your son, then how much would he owe you for the health insurance that your new husband provided? How much would your ex have had to pay had he provided the coverage himself? How much money did you save him?
I’m just asking these questions because it seems to me, he wants to be reimbursed for what he lost – but it kind of looks to me like he’s making out like a bandit not having to provide insurance for his kids. But – I’m not a lawyer, I have no jursidiction, no authority, no nothing. I’m just asking questions.
So let’s get back to taxes. Your divorce decree allows him to carry one child’s exemption each year. But where do the kids live? If they live with you for more than half the year, your ex might not have a leg to stand on. He has a much better argument if they live with him for over half the year.
You should probably talk to your attorney just to make sure you cover your backside. But I’ve got one last question though – it still bothers me that he’s going after 2011 – 2014. What that? Why now? I’ve got a funny feeling there’s something else that’s bugging him, but I have no clue as to what that is. It seems to me that you all would have talked this out years ago and made some sort of agreement about getting health insurance for the kids. Something seems a little fishy here. Maybe I’m wrong, but it just seems a little weird to bring up old tax returns. Am I missing something important?
Hi Sharon,
If you truly are willing to go along with this, then I’d file the amended return. Ideally, he would attach a copy of your amended return along with his paper filed return to show that you are changing how you claim your child. (But it’s not absolutely necessary.)
If you and your ex get along, here’s a post you might want to check out. Tax Strategy for Exes that Get Along
But fair warning, that’s only for exes that trust each other and are both working in the best interests of the children. So if that’s not you two, I wouldn’t bother with it.
Dear Tavia,
You just got divorced in November of 2016. Your decree states that your ex gets to claim the exemption on your son in even years. On your 2016 tax return you claimed your son. That’s an even tax year. So right out of the gate, you just cheated on your divorce decree.
Now, I don’t know why you got divorced in the first place, but when you cheat on your divorce right out of the gate, well it doesn’t look good on you. I’m not an attorney, but it sounds to me like you are in contempt of court.
So what do you need to do to make this right? First, you sign the 8332 form to allow him to claim the exemption for you son for 2016 – not 2017. Then you amend your tax return so that you don’t claim the exemption and the child tax credit, but you do claim head of household and EIC. Read this post so that you know what I’m talking about: Split exemption
He’s going to be mad because the 8332 only allows him the exemption – but that’s all the divorce decree entitles him to. You’re going to make it right by giving him what he’s due. But you don’t let him have the HH or the EIC – you keep that for yourself, every year that you have your son the most.
You’ll have to pay back the extra money you got from the child tax credit and the exemption, but it will square you away with the ex, and you’ll be doing the right thing going forward. And – it’s probably cheaper than going to court.
Hi Andrew,
I’m going to point you to a different post. Splitting an exemption
The reason I’m sending you to that post is because it gets done wrong all the time. (Even IRS agents get it wrong, people get confused.) Here’s the thing – you are allowed the exemptions as per your divorce decree. She has custody, so she claims head of household and gets the EIC (if her income is low enough.) If you don’t claim everything just right – you get a rejected return. If she didn’t claim her part just right – you get a rejected return.
Now, if your divorce decree is dated in 2009 or later – you don’t have much to fight with if she just decided to claim everything for herself – unless you drag her back to court. But if she’s a reasonable person, and understands your divorce decree, and you show her the article – maybe you two can work this out together and both do your taxes right. It would be a win/win for both of you.
Hi Adel,
Follow the instructions I outlined in the post at the top of the page.
Hi Bob,
I’m going to throw another issue at you When was the divorce finalized? I’m asking because if the divorce wasn’t final until 2017 – then they are still married for 2016.
Now, if they are divorced- then single or head of household is an okay filing status. If they are married – single is not an okay filing status.
So – did they live together for even one day during the last 6 months of 2016? If yes, then they cannot claim head of household, they must claim married filing separately. MFS is the absolute worst tax status available. It’s worse than single.
If they lived apart for at least the last six months of 2016 – and, a child lived with them or her or him – then the head of household filing status is an option.
So here’s the kicker – where did the children live? Because that determines who gets to claim head of household. If they can honestly say that they had at least one child for 6 months or more (this can happen during a divorce because they sometimes lived together) then they could both be head of household – at least for the first year.
But what about the divorce decree you ask? That only gives the exemption – not the head of household filing status. It’s possible that the ex claimed properly – but your daughter over claimed (meaning she took an exemption and HH status when she was only entitled to the exemption.) Or, the ex just claimed both kids fully when he shouldn’t have which is my best guess.
I’m posting a link that might help you: Split exemptions
I promise, I really will answer your question, I’m just long winded. So, does she paper file with her son? Yes, I think she should. Does she have a chance to win this? Yes, if she’s following all the rules and she has custody. Yes, she does. If she does not have custody – it’s going to be close to impossible to win.
Hi Corey,
Sorry, I’ve been away from answering for so long. (I just couldn’t keep up with this and filing tax returns.)
You will probably have to paper file again. Or your grandfather will if he’s claiming the kids. This may go on for quite some time as the IRS is very reluctant to prevent a biological parent from claiming kids.
But, you know you’re in the right. It’s going to be long and drawn out. But just stick to your guns. Good luck and be glad that you’re out of that abusive relationship!
Hi Angry,
I’d be angry too! (Actually, angry is a pretty mild term for what I’m thinking but I don’t want to have my content blocked for all the swear words I’d be using so angry will have to do.)
This is what I would do. I would find the closest local IRS office and make an appointment to appear in person. Bring all of your documentation with you. I think that whatever is going on, the phone isn’t working. (I once had a weird case-but a different issue, everyone at the IRS agreed with me but the person working the case. It was outrageous trying to solve the problem. I was right, but the agent working the case didn’t understand the tax issue. I finally had to go over her head. You may need to “go over someone’s head.)
Here’s the documentation you need:
1. First off, the divorce decree isn’t going to help you. Bring it anyway – but it’s basically going to be worthless in your case. I’m guessing that’s the reason you’re still having trouble. You probably relied too heavily on that.
2. Proof your children live with you. The proof I’m talking about is:
school records – report cards, transcripts, stuff like that
medical records – like a doctor’s bill with your home address, a vacination record with your home address
housing records – a lease that says your children live with you
church records – Sunday school notices, etc.
Remember, all of those records need to be dated for 2014, not current.
Remember when you do go to the IRS office, be prepared to be frustrated, and be prepared to be patient. Use your best manners that your mom taught you as a child. Do not try to use your cell phone while you are there. (They are really sensitive about cell phones.)
One thing, if you are getting nowhere – ask them what it is that you are missing – because I really think you are in the right here. What piece of proof do they need to prove your ex shouldn’t be claiming those kids? It seems to me this should be a slam dunk for you, so I’m wondering what your ex has that you don’t? He needs to be able to prove he’s got custody of those kids – and that’s hard to do when you don’t have them.
Good luck!
Hi Quinn,
I want to make sure I’ve got the relationships right, okay?
Boy is your biological son. You divorced biological dad before 2008.
Then I think you got married again. Right? And you divorced the step-father? Am I right?
So the ex- is the step-father and your son is living with his step father and that guy’s new wife, right?
So, if that’s the case, you ex gets to claim your son.
If the ex is the biological father – he gets to claim your son also. Either way, you lose.
Here’s why – he whole “temporary absence” argument is faulty. That works when your kid is in college, it doesn’t work when your kid is in high school living with another parent.
Sorry, but you’re not going to win this one.
In my divorce decree it clearly states under Income tax deductions that the parties stipulate and agree that the HUSBAND shall have the right to claim to claim the minor children as his legal dependents for income tax purposes for the 2009 tax year. Beginning 2010,HUSBAND shall have the right to claim the youngest child as his legal dependent for income tax purposes for that tax year and every year thereafter. Wife shall have the right to claim the remaining as her legal dependents for the 2010 year and every year thereafter, Each party shall execute all documents necessary in order to notify the various taxing authorities of the terms of this provision.
I do not have my children half of the time as I work out of state, but she has claimed my youngest child every year since 2010. What do you advise since she should not be claiming her at all according to the decree
Me and my ex husband use to file where he filed on 1 child and I filed on our other. As my decree stated. However in order to carry insurance with my kids step fathers health insurance I was told that I had to file my kids each year to carry them on our insurance. Now he’s saying he’s suing me for all money I got back on my son for the years 2011-2014. We had a verbal agreement that if I carried my kids on our insurance I would file them on taxes seeing the health benefits people had me send in a copy of my tax info showing they were being finically cared for 1/2 the year by their step father. Although the decree says he files on 1 child it also states he has to carry medical coverage. Do I need an attorney???
My ex husband agreed to let me claim both children for 2016 (usually we each claim one). I filed 2 months ago and have received my refund. He is now saying he never agreed to that and wants me to file an amended return for one of the kids. I am unsure if he went ahead and also claimed one of them ( but from what I’m reading it sounds like if he tried his return would be rejected). Do I file the amended return or what and see what happens?
Dear Jan,
I’m divorced and my ex claims that he should be able to claim our son. I had our son majority of the year and I have supporting documentation. Our final divorce decree wasn’t signed til November 2016. In our decree it states that he claims even years and I do odd years. I claimed our son for 2016 due to the fact I have documentation that proves I’ve had our son the majority of the year more than 8 months. I’ve already got return. He’s now saying he going to report me in contempt of court. I’ve already signed an 8332 form per my tax preparer to deny him to claim our son in 2017 taxes but continues to hound me to sign another 8332 form to allow him to. I don’t want an audit or to go to jail my oldest with my ex is almost 4 and I just had my second son in April of this year. I’m afraid of my ex and his threats. I don’t want to end up in jail with 2 small children. I’ve done everything for my kids and have previous court order stating I had our son for the majority of this year. He wants me to sign another 8332 form to allow him to claim our son in 2017. I’m lost and upset.
Please help. I was wondering if I was in the wrong or right to claim our son for 2016.
Thank you, Tavia
My ex wife and I have joint custody and the kids live with her most of the year. Our divorce agreement states I get 2 of them one year and she gets 1. The next year she gets 2 and I get 1. Problem is this year and last year she claimed all 3 saying the IRS told her to. What can I do?
Hi my ex wife filed taxes with my three kids that lived with me for 9 months what should I do
Forgot to mention she has two kids, and he took both as an exemption in 2016.
Hi Jan – My daughter separated June 2016 with 50/50 legal and physical custody. The marital agreement states they should file a joint return in 2016, but that didn’t work out. They agreed in an email to file single returns for 2016, and my daughter said she will use their son as an exemption. The agreement states they shall each have one child as an exemption each year, but doesn’t state which year it begins. Her e-file was rejected because the ss# was already filed, so I read she now needs to file a paper copy. Since they are filing sigle in 2016 they should each have one child, and he took both. Does she file with her son, and wait for an audit? Does she have a chance to win this with the IRS upon audit? Thank you! Bob
Hi don’t know if you are still answering questions but I need some answers, could you please help me?
My ex boyfriend is the biological father of all 3 kids- he was severely abusive and we moved into MY maternal grandparents house for all of this year (save 10 days). My grandfather makes waaaayyy more money than my ex and we now live in a different county, kids go to different schools. Can they claim myself (granddaughter) and the kids (great-grand kids)on their taxes?
Or will my ex, who is the biological parent, be able to file early and claim them? (He usually files around January 21st with hr block)
It’s not fair but he’s petty- I had to send a paper return to the IRS for 2016 tax season letting them know what had happened and that we don’t live with him anymore. Is that enough? Is there more steps we should take like hiring a lawyer? Or can he continually harass us and defraud the IRS?
Hi there!
I am in a predicament. In 2014, my husband and I claimed our son, and my son from a previous marriage, who lives with us. Because of my husbands income, we do not qualify for the EIC, we claim them as exemptions and for the child tax credit . 2 yrs later, we receive a letter from the IRS stating we owe money, to the tune of 3500. Evidently my ex claimed our son (his and mine) as well and the IRS proceeded to audit us (my current husband and I) So far, we have lost the battle, even though we have sent everything they requested to prove his residence. Not only did they take MY son, but also OUR son and we are repaying for both of them.
My 2 questions are, how can this happen, when he not only lived with me, but it was my court appointed year to claim him, as stated in my divorce decree, and why on earth, would they take the child that we have together? We have made several calls to the IRS, and nobody can explain this to us, in fact, most representatives are as baffled as we are. We find this to be a little suspicious and feel the IRS is completely in the wrong. Are we missing something here? I should add, along with everything else, I did send a copy of my entire divorce decree to the IRS with hopes that that would help our case. No such luck. Today, we received a letter from our state dept of revenue, stating that they were contacted by the IRS and our 2014 taxes had been amended and we owe another $900. Now we are up to almost 4500. Any thoughts on what we can do? This is a lot of money.
I have a biological son from a previous marriage, and I have provided all support, medical, make all Dr. Appt’s, and have a pre-2008 divorce decree from his biological father stating I am the only parent who can use him as a dependent. Now, when I got divorced my son asked if he could stay with my ex, his step father only for school. I had to move to another town and state for work, part of the agreement for my son to stay was me signing over the marital home. My son comes home on all breaks, has his own room, and hasn’t ever been told he can’t be with me. He just wants to graduate with his friends. So, last year my ex claimed my son without permission, don’t know how because he doesn’t have the same last name, never filed jointly together, and he got re-married. This year I called the IRS and was told that my son living there was considered a Temporary absence, and they should have never had filed without me signing a document. This year I claimed my son because he again is only there for school, I am responsible for everything, and he graduates this May and will be coming home permanently. Well, my ex and his new spouse found out I claimed my child and told him it was illegal, which per IRS, school is considered a Temporary Absence, and he is my biological child, and I have a court document stating I can file without restrictions. I am not trying to do anything illegal, I just wanted my child to graduate with his friends. Now their telling the whole town I stole from them when I’m the one who signed over the house, cars, furniture, and pay them $1500 for his food, and I pay for every other thing that child needs or wants.
Hi Marion,
I wish I had a good answer for you. I don’t. There are penalties, there are fines. But the IRS is hesitant to prevent a parent from claiming a child. I haven’t seen much progress. I’m sorry.
Hi Marion,
Some people have posted that they’ve had great success when sending in all the documents on the front end. I’ve heard other people say it didn’t help at all. I figure that it can’t hurt – but make sure you send copies – not the originals as you might need to send them again.
Hi Tsmith,
Yes, your exes will eventually get their refunds and you need to pay what you owe.
How can the situations described in this blog be prevented from happening year after year? My ex claimed my chilldren this year fraudulently. I don’t know when I will see me return as I paper filed and sent in supporting documentation at the same time but my bigger concern is having to go through this every year. What’s to prevent him from doing it again?
Very helpful article. When you say Months for a return to be resolved is that always the case? When I was forced to paper file because my ex fraudulenty claimed the children I sent in the court order stating that I was to claim the children. Historically, I have always claimed the children. Do you think sending in the documents on the front end will help expedite a return?
Hi, I need some help with this. I filed my taxes about a week ago and the part where it asked about the EIC I put yes and I put do I have more then half of the year. I think I was suppose to put no. I have two kids. We usually do the claim every other year I claim my daughter. My son dad efiled his and it was rejected because it said that someone else tried claiming. Soon as he told me that I immediately sent in the amend same day I filed. Which was a week ago. Today I check my account and my refund is there. I was thinking that maybe they would hold off on the refund. I have a few questions. Will both my kids father still be able to claim the child and get the refund for them? That’s my main concern. I should have not just claimed them at all I guess I misread the EIC. One of the kids father sent his thru the mail. My other child dad said that he and his wife efiled thru another company but have not heard anything back yet. What happens it most cases like this? I don’t want any issues at all and I want to continue the every other year thing. It was my mistake. Will they both get the refund and will I have to owe?
Hi Sierra,
First, I’m sorry about your situation. That had to be hard raising a child while homeless. I’m glad things are better now. That said, you still had your child with you for the whole year, even if you didn’t actually have a “home”. Fill out the IRS paperwork the best you can. You may not of had a roof over your head, but clearly your child was not with your ex so how is your ex going to prove the child was with him?
You might be able to get some free tax help near you. Here’s a link to find an IRS taxpayer assistance center near you.
Granted, some of those people are (insert nasty word here). But – some of them are really nice and understanding and helpful. And those people are a blessing. If you can get one of them to help you, that would be great. I think that might be your best shot right now since you don’t have excess funds for an attorney. Good luck!
Hi Rick,
Good luck.
Hello,
I am currently being audited for my 2015 taxes. My son’s father did file using our son in 2014. I mailed in my return, then the documents they asked for, and received my return. Then, Jan 2017 I get a notice for this audit! I have already faxed in documents showing he has been in my care and everything, even filed my taxes for 2016 already. Problem is I claimed HOH but we were homeless until Sept of that year, but my son was still in my care 365 days for the past 3 years….I really need advice. Should I get an attorney??? I’m a single mom and I live paycheck to paycheck so that’s going to cause a burden….BUT…At the end of the day I need to handle this so is their anything I can do?
I have had 80% custody of our 2 kids for 7 years. Have claimed them every year since divorce. Recently took ex back to court for increase in child support and her response was I want 50/50 custody. She lost that case and I guess claiming kids on taxes was her way of getting back at me. Guess it’s time to contact IRS and go after her.
My Dear Angela,
You win! You’re in the right. No fear! Who the kids live with is everything. Money is nothing.
Now, what you might want to do it claim the three that you can and e-file just to get your refund faster. Then file an amended return claiming the fourth child. One thing is you’ll see how much the fourth child is worth – dollar wise. It will be easier to see if it’s “worth it.” I would guess that it is, but you’ll see the numbers for yourself.
But the bottom line is – you are in the right. Don’t let anyone intimidate you.
Hi Vina, Here’s a post for you: split exemptions
It might be helpful. Also, you should check with your attorney about when your husband needs to quit claiming your son. Does it stop at age 18? Some decrees stop at 18, other continue for as long as the child is in school. I’d check with my lawyer if I were you.
Hi Wendy,
According to the court documents, the ex has the right to claim the one child. But the ex can only claim the exemption and the child tax credit, not the head of household filing status or the Earned Income tax credit (if he qualifies.) Here’s a post about that: Split Exemption
Your son and his wife should do their tax return, claiming what is legally theirs to claim and paper file the return. That’s how to report it to the IRS.
Hi Alicia,
Thanks for that post. So you paper filed an amended return and got your money back within two weeks? That’s got to be a record. Somebody upstairs loves you!
So, just to get the order straight. It sounds like you e-filed without the kids to get at least that part of your refund. Then you filed an amended return with all of your documentation attached claiming the kids. The key issue being that you had good documentation which made your case. Sounds like a good plan. Thanks for posting!
Hi Tashanna,
Number one is that you want to file your taxes as early as possible, beating out the fraudster. Sorry, that’s lame advice, but that’s the best. You need to report the identity theft to the IRS. They are very reluctant about issuing PINS for children, but supposedly they will do it. If you didn’t get one for 2016, according to the IRS website it means that they did not settle your identity theft prior to December.
So, job one is to make sure the IRS knows you child is a victim of identity theft and it’s not a case of an ex just claiming her. In the meantime, you’ll be paper filing all those returns and going through the process of proving she’s yours, and she lives with you, and you support her and all that. Good luck.
Hi Jay, first thing is to make sure you’ve only claimed what your entitled to on your tax return – just the exemption and the child tax credit. (Common mistake, so I have to ask.) If you did it right, then check with the ex. Did she only claim the Head of Household and EIC if she’s entitled? (Another common mistake for divorced folks)
My guess is your ex claimed the exemption too, instead of just HH. Which may or may not have been intentional. If if was an honest mistake, then she simply needs to amend. And you either paper file or what until her amended return is processed.
If her “mistake” was intentional, then you have a different problem. You see, she should have given you a form 8332 to show you have the right to claim your child. Without it, the IRS won’t do anything. Then it may become an issue for your lawyer to force the issue. Sorry.
Hi Sarah,
That sounds like a question for your attorney. The IRS would allow you to claim your kids, but I don’t know about what would happen to you if your ex took you to court over it. That’s why you want to talk to your lawyer.
Hi Spencer,
If you did not have your daughter with you for more than 6 months then you should not be able to claim her as a dependent on your tax return. But it also looks like your ex cannot claim your daughter either. I mean, CPS had your child for 8 months, right? I’m sure your intentions are good, but you weren’t providing support and she didn’t live with you – so the exemption is not yours to take. Sorry.
Hi Yahira,
You need to file your tax return by printing it out and mailing it. Claim your daughter on the return. That’s what you need to do.
Hi Jan,
This site was very helpful. I’m wondering if having my ex audited is even worth it? I have physical and legal custody of our 4 children.They live with me, all year. Their dad see’s them 22 hours every other weekend (on the weekends he does get them) and does pay child support, it’s garnished, a little under what court ordered. I work part time and go to school part time. I just filed, HOH claiming all four kids (my divorce papers say 2016 is MY year) and all exemptions. The next day they were denied because a social on at least one of my dependents were already used in a tax return this year. *Side note, he called two weeks ago and asked me if he could claim at least ONE child because he was getting demoted and would end up owing. He was on speaker phone, with a witness in the room, and I told him NO 3x. He claimed all 4 last year. Verbally and through text said he would give me half of the tax return from the kids. I saw NONE of it. So this year I said NO!* Seems as if he filed anyways and I didn’t sign any papers allowing him to. I have a meeting with a tax person next week, to file by paper, with a copy of my divorce papers. This site (and comments) helped me to know what to expect with the next steps as I have no problem proving they lived with me. *He’s not on the school or Dr office papers even*. I guess my question is, he does make 5x more then I do (including child support), is fighting this (as a principal so he knows I won’t continue to allow him to walk all over me) worth it? Being audited by the IRS scares me, but I’m within my rights, so I have nothing to be scared of. It’s just intimidating. Do they go by who has the children or who has more income? Thank you for any input you may have.
If my son is over 18 and lives with me full time can I claim him on my taxes if my divorce papers say different?
Columbus, OH | an hour ago
My son has lived with me for 3 years straight, full time and I pay for everything for him. I was divorced when I was young and my ex-had it in the divorce papers that he gets to claim our son every year. I did it so I could get a divorce. My ex-was abusing me and I needed to get out. I am older now and I pay for everything for my son since he chooses to live with me full time in the last 3 years. I have let my ex-claim him every year still. Our son is over 18 and I feel that since I have had him and have taken care of him and I can show proof. Am I wrong and if I do claim him, can I get in trouble. Sometimes its just not fair!
Hello,
My son and his new wife have been told that her ex husband already claimed their two children on his return. Problem being, full-time custody for the one child was with my son and his wife, never the ex but court documents say he does have the right to claim one of the children because at that time they shared custody 50/50. But in 2016 he was unemployed, evicted from his rental home and ended up in a homeless shelter so both kids lived with mom. We can’t understand how he ever thought he could claim two children as dependents when he obviously could not be providing for them in his situation. He has not paid child support in a year. He has not only prevented my son and his wife from receiving the refund they are actually due, but he has committed fraud!! What can they do to fight back? How can they report his false claim and to whom?
Thank you so very much for any advice!!
Angry Mom
I have a situation, cps had mad daughter in there custody from jan 2016 to late august 2016..me and mom signed court order stating she gets her full time weekly and I get her every weekend no child support involved everything is split down the middle she gets to claim our daughter though come income tax..well she got custody back late august and lost custody again late October cps took our daughter from her care and placed her with me full time and here we are feb 10th 2017 and I still have my daughter full time her mom has only seen her 3 times since late October. well I filed incometax already and claimed my daughter because mom lost custody. did I do wrong. I wanna make sure the money is used on or for my daughter and if it goes to her mom who doesn’t have her and prolly wont get her back will spend it else were
if she did even have her for 2 months and lost custody now I have custody technically I have had her longer.
please can I get some advise
Hi Broke Dad,
What I have done for other in your situation is just file a simple return with $1 of other income on your tax return and claim your daughter as your dependent on your return. You need to have some income to file the return which is why I chose $1. It won’t give you EIC, or child tax credit or anything, but it will bet your daughter’s social security number used AND prevent your ex from claiming her on her taxes.
Hi Michelle,
The girlfriend has no legal claim on your children.
Hi Shelly,
Your child support isn’t taxable but your babysitting income could be reportable, taxable income. It might help you to qualify for EIC or a child tax credit You might want to sit down with a preparer to walk you through it. This post might help you: Proving You Have Income
My child’s father has claimed my daughter 4yrs in a row now behind my back. I have custody and he has visitation. Mind you he was in prison the 1st year was released and decided to claim her. What exactly do I need to do to prevent this, what forms do I need, and regain what’s owed to me?