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
Thank you so much for your reply! You’re absolutely right and I really wish we could work together, however, she doesn’t believe she has to being equal participate in that. She simply claimed our daughter and kept everything thinking she has every right to do so. Plus she knows that I will avoid going after her for the sake of Civility for our daughter.
So the question is, what can I do to correct this? I know next tax season I will be claiming her, but is there anything I can do now to get back what I lost. That loss being around $3,000 which was a major blow to us.
I got divorce in 2017 – I have full custody of my 3 boys and my ex. Claimed the boys when she filed , even though she didn’t work at all. I filed my taxes and now i been audit. What can i do. Thank you Hector
Hi Greg R,
So – if parents disagree on who gets to claim a child, then the exemption goes to the parent that the child lives with more. Since you have equal 50/50 custody then the parent with the higher AGI would win the exemption. That would be you.
But what do you gain? Maybe $1,000 to $2,000, right? She loses $12,000. This is really bad for her. If you two could work together, you could maximize your tax situation. Tax Strategy for Exes that Get Along
I’m guessing here that for you and your ex – you should claim the exemption, and she should claim head of household filing status and EIC. That would be a win/win for both of you. She’d have to pay back the $1000 child tax credit, but she’d keep the EIC – and that’s what she really wants.
I’d discuss it with her. Because if you fight her on this, and you win the full exemption, she looses all of her refund. And I’m pretty sure she wouldn’t like that. But giving her an option that the two of you an use for the next several years – where you both have the opportunity to win–well, that sounds like a good idea to me.
Hi Jennifer,
They only got divorced in 2017, but she’s been claiming the kid for three years? I guess they were separated for some time here. So really, the only year in play here is 2017.
If there is a fight over who gets to claim the child, the winner is the person with whom the child has lived the most. That trumps who has the higher AGI.
Hi Miranda,
You will paper file your tax return and claim all the benefits you are entitled to. The process is slower, but eventually you will win.
Hi Heather,
This may help: Court Ordered Exemptions
Hi Moore,
It’s unlikely that you’ll get your refund before this is sorted out. It will probably take at least 12 weeks, maybe more. Sorry.
Hi Christina,
I’m way behind on my answers and it’s possible you still haven’t gotten your refund yet. This can take 12 weeks or even longer.
Hi Deniseq,
It sounds to me like there was a condition that he had to meet in order to claim your daughter. He didn’t meet the condition. Now I’m not an attorney and I can’t give legal advice so it’s not up to me to say if you did something wrong or not. Common sense sounds like you’re in the clear to me – but like I said, I’m not an attorney.
As far as your taxes go – the IRS does not care about what’s in your support agreement. You did not sign an 8332 releasing your daughter’s exemption and that’s all they’re going to care about. So from a tax perspective, you’ve done nothing wrong.
Maybe your ex would be better off if he spent his money paying his child support on time instead of trying to get a lawyer to harass the mother of his child for doing what she was allowed to do in the first place! (Sorry, was I being catty? I just couldn’t help myself.)
Hi Crystal,
I think you’ve got a really good grasp of the situation. My guess is that his ex did not sign the 8332 form releasing future ears at the time of their agreement. As a tax professional, I always tell the custodial parent to to release for any more than one year at a time. I also always tell the non-custodial parent to ask for the renewing release – precisely for the reason you’re talking about.
Here’s a link to the form: 8332
As you can see, the top part only releases one year, but the next part is for a release of future years. What I would do is fill it out for those future years, and have the ex sign it. Get her to commit now – while she’s saying she’ll do it. It’s your best shot.
Hi Kelly,
What you need to do is paper file your tax return. The worst that will happen to him is that the IRS will have him repay the refund that he got. I doubt that his mom will get into trouble. She’s not a tax professional and probably didn’t sign the return.
Hi Marisa,
The IRS doesn’t care what your divorce decree says, it cares about where your daughter lives. Is she with you more? If yes, then paper file claiming everything. If she was with your ex more, then paper file but only claim the exemption and child tax credit for her, not head of household or EIC. Really, if he has her more, then he should give you a form 8332 giving you permission to claim the exemption. Couples often forget to do that, but that’s what they’re supposed to do.
If he doesn’t issue you the 8332, and if your daughter didn’t live with you for more time than she lived with him, it may be difficult for you to get anywhere with this. Good luck.
Hi Dede,
Your boyfriend has an agreement to claim his daughter in even years. This past filing season was for the 2017 tax year, that’s an odd year. Now, since he had custody for over half of the year, then he might be able to claim head of household and EIC, but he still must release the exemption to his ex. He should try filing without claiming the exemption. If he wants to fight for 2016 – that’s where the fight is. But if she didn’t live with him for over half the year – then he only gets the exemption and child tax credit, not EIC or head of household.
Hi Andrea,
You file an amended tax return claiming all of your children and you mail it it. Of course, be sure that you can prove that you have the legal right to claim all of your children before doing so because you’ll be asked to prove that you can. That’s the best way to deal with it – and it also should get you some benefit too. If you just report him for fraud, you get nothing. Claiming your kids – if you can do it legally, that’s the best.
Hi Kathy,
so technically you have the greater claim. You paper file your tax return, claim your daughter, and when the IRS sends you the paperwork asking you to prove your claim, you fill it out and send it in.
Hi, I am in a difficult spot and hoping for some clear answers.
My ex and I have a somewhat civil Joint Custody arrangement with our divorce. The arrangement stands as there is no Primary Parent, no support, and Joint Custody with her having our daughter half the week (Mon, Tue, Wed), I have her the other half (Thurs, Fri Sat) and we rotate Sundays. We verbally agreed the mailing address will be with her due to the better school and our daughter receives free Health Insurance.
I have been claiming our daughter for the past 4 years since her mom has had no income to which I freely give her any Child Tax Credit as I don’t need it since I have an income. In 2017 her mom did have a small income to which she filed with our daughter on her return as a “shady fast one.” So not to cause an issue and attempt to work it out peacefully, I filed without our daughter. As such her mother gained over $12k and refuses to work out anything civilly.
Is there anything I can to amend my return so I can legally get something back as she is part of my household?
My fiance and his ex wife divorced in 2017, and in their decree have no language about the claiming of their minor child or a schedule, just that their tax returns shall fully belong to them and they won’t be penalized for the other’s misfiling a tax return. She has claimed their child for the past three years and split the child tax credit, and claims she also split the EIC- even though she has only given 600-700 dollars to him per tax year. The child actually spends more time with us than his mother, so the tax season has always been a hardship because she refuses to file or allow my fiance to file until she “crunches all the numbers” in order to figure out what benefits her the most. This year, my fiance filed and claimed the child on his taxes and qualified for the CTC/EIC. His ex has been threatening us with litigation because she wants more than half of the CTC, and states she will “let it slide” if we give her 1300 dollars (the CTC was 763). She also states that she would win because her AGI is higher, but again…she has ALWAYS claimed the child and taken thousands for herself but given us very little, and this year he attempted to make good faith efforts to compromise on the filing and she refused. What can we do?
My kids have been living with me their biological mother for the past 3 years and going to school in Tallapoosa County. My husband or my ex-husband was incarcerated almost the whole year of 2017 and he beat me to filing taxes and filed both of my children how he did this I don’t know because he didn’t work while he was in prison is there anything I can do to report him to the IRS because he wasn’t supposed to claim my kids he does nothing for my kids he doesn’t pay child support he barely sees my kids he’s been in prison for years and always gets out right at tax season and he filed my kids this year on his taxes and he didn’t even have a W-2 that I know of unless he worked while he was incarcerated but I’m just looking for some information on what I should do from here?
My ex has been claims our child for the past 9 years, his friend does his taxes through e-file the very second the IRS begins to accept returns so he “beats me to it”. Our parenting time/ Custody agreement through court states that we Share any state benefits and Tax returns, our court order was signed in 2008.
My kids father claimed them on his taxes… naturally mine were rejected so I sent them on paper… They’ve been living with me since birth everything is under me… school… insurance… I have filed them every year since birth…Any idea how long this process will take to get my refund? Also is it true that i could still be issued a refund until the IRS figures this out? He has already received his refund.
My ex used my son on his tax return, so I mailed mine in. I know I have the right since I full custody and he has no time with him. What happens next? Will we both get a refund than audit ? Or will we get audit and show proof? Pleas help I mailed my return 5 weeks ago & all I get is still processing.
My ex and I went to court and the judge said he could claim our daughter if he was current on child support. He is not. So I claimed her, he did too. He is now upset that his refund was denied and said he is only a month behind and I can get in trouble and he was going to get an atttorney. Did I do something wrong?
Hello, my husband and his ex who were never married agreed and signed papers that she would allow him to claim their child every other year on taxes. This was his year to claim their child. We went and filed our taxes and it seems like everything went through and the next day the tax preparer called us and said that his child had already been claimed. He talked with his ex and ask her if she claimed their child and she said yes I did. She said it is not a refund that you will get anyway it is a credit so it shouldn’t matter. She said you can just claim them next year. However we know that she will not stick to that and will say she forgot again and we won’t get to claim her again next year. My question is I have been doing some reading online and seeing talk about Form 8332. If this is the form that they originally signed stating that he would get to claim his child every other year, does he have to have is X sign Form 8332 every year that it is his turn to claim his child or is it only that one time that it was agreed upon in court that it has to be signed? Also I read somewhere where he must attach Form 8332 to his tax papers each year he claims his child and send it in. Why do tax preparers never mention this when they know you are claiming your child every other year? I guess the main question is do we have to have his ex sign Form 8332 every other year to be eligible to claim his daughter? And if she does not sign the form every other year does that give her the right to claim their daughter every year if she wants to?
Hi my taxes just got rejected. I just got a divorce and won with child support I have 80% custody and he has 20% he never even has them 20 percent of the time it’s more like 5%. Anyways I told him he could not use the kids as dependents on taxes he did anyways. What should I do? His mom did his taxes for him she new everything that was going on could she get in trouble to?
I just received a rejected efile from the IRS stating my daughters social was already used. I am divorced with shared parenting, week on week off. I am also listed as the residential parent. Also, in our divorce decree it states that he will get to claim her on even years and I get the odd. This being an odd year I am wondering how difficult this will be to fix. Ps.. he’s a difficult man, lives with his parents and has no real source of income
In the separation agreement my ex and I agreed she had odd years and I have even years. For 2016 she claimed our daughter and so this year I tried to claim her, she lived in my house over 7 months. Her mother had already claimed her, so my taxes were rejected. What do I need to do? (I am asking this for my boyfriend)
So my tax person had me claim the two children my ex didn’t claim. I have texts as proof he asked to claim for taxes but I told him no all 5 of our children are in my custody. So what do I do to get him on frard or to say he didn’t without my consent.
I have custody of our daughter through a exparte order but my x still claimed her and he has no custody as of 4 months ago and he only lived with me a month after she was born! What do I do?
Hi Wes,
Yes, to fix it you would amend your tax return. Remember, only claim what you are entitled to. If your kids don’t live with you, you may only claim the exemption and child tax credit, you may not claim EIC or the child care credit. If you over claim, you’ll mess up winning on the amendment.
Hi Cheri,
You’re right, the mother may not claim the child for EIC. You, as the legal court appointed guardian have the only right to claim the child on your tax return. I would paper file. You will be sent a letter requesting proof, once it comes, send your documentation in. It will take some time, but you are in the right.
My ex claimed my 2 kids, when in our agreement from the courts states I can claim them every other year. I am married now but and I tried to file taxes with my kids and was rejected. Then My wife went and filed our taxes at H and R block filed without my my kids on it and the return has been accepted , how would i fix It to claim my kids, would I amend them
I am a legal guardian of a minor. Her absent mother spends zero time with her. She resides with me in a completely different state. Can the absent mom legally claim her on her taxes to get the EIC? I would think not and I consider it tax fraud. We just found out she has claimed her not only last year but this year as well. Is it legal to do so? I have a paper trail with two Superior Courts, the Letters proving I am her Legal Guardian, and DCSS report that states she pays child support as she is the absent parent. Any suggestions?
Hi Joseph,
First you want to know exactly why your return was rejected. Although I’m guessing that you do know it’s because of the kids. It sounds to me like you and your wife have the legitimate claim. You know today is the first day of filing. Her ex must have just gotten his return in before you. Wow.
Hi Bee,
If you should not have claimed your children, there could be a dispute. If you are the true custodial parent – it doesn’t matter what the support decree says, did the children live with you? I’m guessing that they did.
But what does responsible parent mean? I mean as far as your decree goes. Does it mean he gets to claim them? Then it should spell it out. X gets to claim the exemption. But, that only means the exemption and the child tax credit, not head of household filing status or EIC. Here’s more information: Splitting an Exemption
Hey Mrs. Roberg,
I just got an email that the IRS have rejected my tax return. My wife and I filed jointly and we claimed my step kids (4 of them) on our tax return. My wife have full custody of the 4 kids and she’s fighting their Dad for child support and he doesn’t even want to pay that saying the kids are not his. I provide in full for them and they live with their Mom and I. Do you think that I have chance in this if I provide the IRS with Doctors papers, school registration papers, health insurance documents.. or whatever else they could ask for?
We have a child support agreement on our signatures it says I’m the custodial parent and he’s the responsible parent. I claimed all the kids before him so he’s mad and he said he’s going to dispute it. Is that possible?
Hi Nicole,
I hear you! Sadly, because the IRS “doesn’t want to get involved in family disputes” they won’t do anything! Now, if the girlfriend filed with your kids numbers – the IRS might actually get involved because that’s identity theft. You might get a PIN then. But so far, they haven’t been issuing PINs when it’s another parent stealing the kids socials. Sorry.
Your best bet (and I hate giving this as advice) is to file before he does. Doesn’t always work, but filing early for you is your best chance.
Hello! My twins father has been filing for them for the last 3 years and I always have to end up mailing my taxes in. The irs has done nothing to stop it. I have full custody of my children and they are with me 24/7 365. He even had his girlfriend file so child support wouldn’t take his taxes. And that is how he ended up with their ssn because of child support for insurance. I don’t know what to do but I know I’m tired of mailing my taxes in and the IRS not doing anything.
Hi Deborah,
I’m guessing you mean he said that he was supposed to claim the child, not hurt the child. (Girl, if he’s talking about hurting your child you move out today! – But I’m thinking that was just a typo.)
Anyway, is your boyfriend the child’s father? If he is not – he got nothin’. I just want to be clear about that.
Now, if he is the child’s father, and you have both lived with the child for the whole year together, and IF – notice that I’m saying “if” here, IF you two were to fight over who claimed your child, then the parent with the higher income wins.
BUT– and this is really important, BUT–if you are not fighting over who claims the child, it doesn’t matter who claims the child. In which case, you two might want to work together to see where it makes the most sense. If you make less, it might make more sense for you to claim the child. It might not. You can run both of your returns for free at this link: 1040.com
Hopefully that helps. Good luck.
My boyfriend was saying that by law he makes more money that he was supposed to hurt the child by law I wonder is that true because we are having some serious issues about that it’s not y’all too and we live in the same household and we’re not married what is the answer is a true or not please answer me and have a wonderful day
Hi Solmarie,
If you have not signed an 8332 form then you can amend your prior returns for up to three years.
So the father of my child has been claiming my daughter for the last four years with out my permission and my daughter lives with me I take care of her he barley see her and does not do anything for her or gives me money when he gets taxes so this year I have decided enough is enough and I will take matters in my hand but I want to know can I claim back all them years of taxes he has done I have proof my child has lived wit me I have full custody and everything ?????
Hi Ashley,
So you’re asking me for permission to violate a court order? I have no authority to do that. Technically, you should issue your ex the 8332 so that he can claim the exemption and the child tax credit. He is not entitled to claim EIC for the child care credit.
Now, he hasn’t paid his child support. When was your divorce decree signed? You should probably read this: Court Ordered Exemptions and the IRS
If the decree was from 2009 or earlier, and there are no conditions, your ex can just mail copies of the relevant pages to the IRS and yes, you can get into trouble.
If it’s 2010 or later, he can’t do that. And you can hold his 8332 form ransom until his child support is paid. That is your bargaining chip.
Now, technically, since the children live with you, and if your divorce was after 2009, you could just file a tax return and claim the children for everything. The IRS would not care. But – and this is the important part – now I’m not an attorney, and I can’t give legal advice, but my common sense self thinks that if you claimed those kids when you’re not supposed to – I think that would be considered contempt of court, wouldn’t it So although you may not have an IRS issue, you may have a court issue. You should ask an attorney, because I can’t give legal advice. But, just sayin’. You used the term “judgement” and “signed by a judge” so I’m thinking there are potential legal issues there.
My ex and I have a judgment signed by a judge to claim our children every other year. The children live with me all year. He doesn’t supply medical support, my new husband does. If I beat him to the punch of claiming them can I get I trouble with the IRS? HE doesn’t even pay his child support does that matter?
Hi James,
Not in my book. (Oh, and you should win with the IRS too!)
Hi Nicholas,
Okay – you’ve got a weird thing here. You shouldn’t both sing an 8332. Only your ex should sign an 8332. She signs it so that you may claim the dependency exemption. Then she only gets the head of household and the EIC. My guess is that either she also claimed the exemption, or you accidentally claimed HH. Here’s how it should be done: How to Do the Split Exemption the Legal Way
It’s a little confusing, you might want to get some professional help. But I’m guessing that one of you did an overclaim and that’s why you’ve got a reject.
I was divorced in 2013 and had joint custody of my 2 kids, my ex then moved from Ohio to Texas a year later and left the kids with me, to be with her now-husband. At the time, the court said that we could each claim a child on taxes. I have since taken her back to court and received full custody and she has the summer and standard holidays. Between 2013 and 2016 the court never updated the tax exemption section of our paperwork so she was still claiming one of them but the children saw their mom less than 90 days each year (and didn’t even talk to her for weeks and up to 4 months at a time while with me). 2016 I had enough of the ghosting, so I filed an amendment on my taxes to claim both kids. I took her back to court this past February and was awarded (minimal) child support, and had the paperwork updated so I can claim them both on taxes officially. Fast forward to now, the IRS finally caught up and sent her a letter. Everything I can find on the subject says she shouldn’t have been able to claim them regardless what the court says, because the IRS is federal and you shouldn’t lie about where the kids live. I have paid for way more than half my share. She also was court ordered to get a job to hopefully, up the child support to something better than less than $100 a month, per child. I’m basically doing it all on my own. Am I in the wrong?
It is in my consent judgement that the father she’ll be entitled to claim the following minor children as dependents for all state and federal income tax purposes the mother shall be permitted to claim head of household or earned income credit for said children if permitted under state and federal income tax under the circumstances that the other party is claiming the dependency exemption. We both signed IRS Form 8332 which in 2013 I file my taxes and it was rejected by the IRS because she filed also. What can I do about this?
Hi Alicia,
I was just talking about that. Here’s a link to my post about how that works: Splitting an Exemption
Your daughter lives with you. If your Ex claims the exemption, he still cannot claim EIC because your daughter does not live with him. The back up to my argument can be found in the IRS Publication 17 on pages 28 and 32 (for 2017.) Here’s a link to that also: Pub. 17
I made a foolish agreement in court that my ex and I would alternate claiming our daughter on our taxes. He’s been beating me to the punch repeatedly claiming her on years that are not his. In addition I recently figured out he’s been getting the EIC every year. The child lives with me 365 days. In 2016 he did not visit wit her, paid $100 a week in support, which went to afters choose costs. I pay her health insurance, food, clothes, transportation, keep her housed and extracuricular activities.
Yet, I was told by IRS that if HE claims the exemption, HE gets the EIC. He said we couldn’t split it. I see in one of your responses you said otherwise. I am confused. Please explain.