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 child’s father & I am no longer together – my choice – which made the break up very nasty and the court case that much worse we currently have 70/30 custody with me as custodial parent and her living with me. However our court order states he can claim our daughter every other year in odd years which would make 2011 his year o claim her – he hasn’t worked since 2008 & I have proof of that bc 3 times a year he has to update his financial affidavit – his list rent & bills but beside it his mother wrote she pays all his bills to show he has no income & no taxes going out – I went ahead and filed early and claimed him because after calling the iRS weekly to ask if he could claim her the said no every time bc she dosent live with him, it’s a deduction since he dosent pay taxes he dosent qualify and his parents can claim him as a qualifying relative since the support him he did list he makes 400 a month from mowing his moms yard on the last one – now I just want to make sure I was right he can’t really claim her because I did already & plan to bc he pays 49.00 a month in child support & it dosent seem fair he should even get to but his family has money & had a high dollar attorney – I am 21 and have my own home with my child and boyfriend and he is 22 and lives in his own house his parents pay for. If you could just let me know what you think. Thanks!
Last year my ex claimed our child even though I not only have full custody but a restraining order against him as well. Of course when I filed it came back rejected and my tax guy mailed it in. It took a while but I did get the return deposited into my account a few months later. My question is since the IRS gave me the return that I was in the right and will he be able to try and claim him again this year nothing has changed with the custody or order and he doesn’t pay child support on time and only sees him a few weeks in the summer for his visitation, I don’t want to have to fight and wait again like last year.
Hi Katy,
You both need to file amended returns because he’ll have to take 2 of the kids off and you’ll put 2 on. Since you and your ex are in agreement, then you shouldn’t have to have proof because you’re both making adjustments.
Since you didn’t file together, that’s half the battle. You need a form called a 1040X. It’s still probably worth hiring someone to make sure you get everything you’re entitled to. If you did your original on Turbo Tax, you can access your original return and do the 1040X from there. You can call the TurboTax phone number on the box and the person can talk you through the exact steps. You won’t be chaning your numbers, just the exemptions (and maybe the filing status).
This will be worth some money for you so congratulations! Remember, amended returns take some time to process. You won’t see that refund for a good 12 to 16 weeks.
Hi Brad,
The consequences of your ex claiming your son on her tax return when she doesn’t have a legal right to (besides you being really ticked off) are as follows:
1. She will be assessed the tax that she should have originally had she not claimed your son.
2. She will have to pay interest on that amount from the date her return should have been filed (basically April 15th of the year.) No escaping interest payment.
3. She may have to pay penalties of up to 25% for the late payment of her tax, and depending upon how much she owes she could also face underreporter penatlies or even fraud penalties. Most likely, since she’s the Mom, probably just the late payment.
It may take the IRS awhile to catch up with her, but eventually they will, assuming that you filed a return and that you went through the whole paperwork process proving your superior right to claim your son.
Jan, NO we filed separately. I was just saying he got screwed out of the $ he was owed just as much as I did. Cause we both now claim 2 kids each. He claimed all 4 as HALF which of course didnt get him back his full amount & it TOTALLY screwed me. I just want to get my amount. But since we actually get a long I figured both fixing our taxes would show the error better? I dont know. I just want to get to claim the 2 kids I always claim for the EIC. Do I have to redo my entire taxes or just the messed up part & how do I prove I can claim them? Do I have to provide proof? What kind of proof if I do? cause our decree only mentions the yrs filing from 2009 on. Ugghh
what are the consequences of my ex wrongfully claiming my son?
Hi Shadow,
I’m sorry, there’s no number to call or place to visit to prevent someone from claiming your child. I wish there was. You can fight back after the fact, but there’s no way to make a pre-emptive strike. Sorry.
i was wonderin how i stop my ex from filling taxes on my son he doenst not live with his father and he only sees him on weekends i live in bakersfield is there a numbre i can call to stop him or a place i can go to?
Hi Stephanie,
You’re asking a really good question that I’ve heard often. First–you don’t need to send the IRS any kind of proof when you file the return. (You probably knew that already but somebody asked me that on the phone so I thought I’d point that out here.)
But the real question you have is will my court papers that say I have physical custody be proof? And my answer is–kind of–but it’s not 100%. It strengthens your case, but the real proof is where the kids actually live. Maybe you know someone who supposedly has physical custody of their kids but really the other parent has them? There’s always some case like that. The IRS has seen plenty of cases like that so while your document that says you have custody is helpful, if your ex came up with documentation that you haven’t been around at all, he gets the kids to school everyday and takes them to the doctor, etc–well then you’d be out of luck.
Bottom line, you want to hang on to those school documents: report cards and anything that shows your children living at your address. That’s going to be the hardcore proof that shows that the children really are with you more so than a court document.
Hi, the father of my daughter has told me he will claim her on his tax return this year. I was not working last year, so I allowed him to do so, although she lives with me. I have worked this year and I planned on claiming our daughter on my tax returns. I have legal court papers that indicate joint custody, but I have been given physical custody. Can I use these papers to show proof to the IRS? Thanks
Hi Katy,
It depends on how you filed the first return in 2008. Technically, you were not married because of the divorce. I’m thinking you should file separate returns, showing your status as either single or head of household (depending upon your situation.) You should not be Married Filing Separate (which is bad as far as refunds go and wrong because you were divorced.) If you used any of these statuses, then you just need to change your filing status (if it was MFS) and switch the claims on the kids. If you filed as Married Filing Jointly, you’ll probably want some help from a pro–because that would be a little harder to fix.
Thanks Jan, Can we both file an amendment & what do we do to file the amendment?
Hi Katy,
If you need to make changes to your 2008 tax return then you should. If you file your amendment before April 15th, 2012, then you should still be able to receive any refund that is owed you. Don’t miss the deadline though or you’ll be out of luck.
I have a question hopefully you can help me with. My ex & my divorce was finalized Dec 08. My ex filed his taxes first but claimed our children as Half yr. Which of course meant I couldn’t claim them. That made my tax return drop big time obviously. He & I know claim 2 kids each & we have done that for the last several yrs. So basically in 08 we both got screwed on our taxes & didn’t get back all we should have. How can we correct this issue? Can we both file amendments? What would be the best action if anything?
Thank you so much for trying to get an answer from the IRS on this. I really was trying to do everything by the book! At this point, I guess I will just hold tight and see what the IRS has to say in response to my tax preparer’s inquiry. And maybe, just maybe, my husband’s ex will realize that this was not the right thing to do and not to pursue this any further. I would like to say I could discuss this with her, but if she knows how much stress this is causing us, I’m afraid that would just encourage her to pursue it even more. Thanks again for your help!
Hi Lacey,
That’s an important question–the form 8332 does not allow your ex to receive EIC, the EIC and the Head of Household designation is for you only, because you are the custodial parent. Your ex only gets to claim the exemption and the child tax credit.
Now you can revoke the 8332, but it will take some time. According to the IRS instructions; the revocation can be no earlier than the year after the tax year in which you give the notice to the noncustodial parent. So if you give him the revocation notice now (that’s 2012) the earliest tax year you can have it back is 2013.
You’re going to save a copy of that notice and you’re going to send it with your tax return every year afterwards. (We’ll know more about that stuff later, but by 2013 hopefully you’ll be able to attach it as a PDF and still e-file.)
You’ll also have to have proof that you sent him the notice. I would suggest using registered mail, return receipt requested. When you get that little green slip back keep it in a safe place with things like the kids social security cards and such.
Ok so I would just like to be clear on this. Does the exemption form 8332 entitle my ex to claim the EIC? Or just the dependant allowances and such? We’ve been separated since May of 2010 and he wants to be able to claim our daughter on his taxes. I unfortunately already signed a form 8332 allowing him to claim her for 2012 and future years but do to current disagreements may be revoking that. How long do I have to send him the form revoking it and what’s the best way to go about doing that to cover my backside. For the record the children only spent 9 weeks with him this year and will probably only be the same next year.
Hi Wendy,
I wish I could give out prizes for stumping the EA, because you win! You claimed Married Filing Separate–so that was the right thing to do. You didn’t claim EIC (you’re right, your preparer would not have done that.) So the issue is the dependency exemption.
And in my book–I would have let you claim the exemption too. I think your preparer was right, and I still do. Where I got stumped is–who has the stronger claim? Does a biological parent beat a step parent on a tax return? I don’t know. I looked things up in the various IRS publications and it doesn’t say. So I called the IRS.
I hate calling the IRS. Because they won’t just answer the question, “Who has the higher right, the biological Mom or the Step Mom?” No, you have to go through their whole process. It took an hour and 40 minutes. But I really wanted to know. She didn’t know, but now she was like–“we gotta figure this out!” So while I was on hold, the IRS lady was going around polling the other IRS agents and asking her supervisor. So here’s the official answer:
A step parent is considered a parent for the purposes of claiming an exemption. No preference should be given to the birth parent over the step parent in a tie breaker. But–the chief issue here is really where did the child spend the most time? So when you get down to having to fill out the forms, etc. Where did the child sleep the most. That will be difficult because it sounds like you really had a 50/50 arrangement, but bottom line will be where your step daughter lived the most.
If for some reason, you and the birth mom are exactly even on nights spent at your house, then the tie-breaker will be who has the higher adjusted gross income. So–your job is to figure the nights.
And one other thing–although I’m 99.9% positive that the person who claimed your step daughter is her mom–if you two are at all on speaking terms, it’s probably worth talking to her about it. For one thing, identity theft on tax returns has gone up astronomically (I know, it’s a long shot, but I did have that happen to a client so I never rule it out.) But also, maybe you two could come to a friendly agreement instead of fighting it out through the IRS. I know, it’s not always possible, but I just thought I’d put it out there.
Thank you for your response. My husband and I do file married, but separate. And I would hope that my (very experienced) tax preparer knows that when you file MFS, you cannot claim the EIC (which you pointed out.) I guess my question is … since I claimed the child and (presumably) her mother claimed her, who gets the return? I filed early and received my return right away. I’m assuming she filed after and hers was rejected. So at this point, will we both have to fill out the lengthy IRS forms I’ve heard so much about to prove our case? And will she have a stronger claim because she is the biological mother, even though my gross adjusted income is more?
You are married to your husband so that makes the husband’s daughter your step daughter. You meet the relationship test–so that’s okay. And it sounds like you meet the custody requirements too.
But–I just want to make sure everything is as my Dad would say, “hunky-dory”. The thing that worries me is that you talk about “your” return and “your husband’s” return as though they’re not being filed together. And that’s still okay–probably.
But–this is where you could potentially have a problem. If you and your husband are living together and filing separately, then you must file as married filing separately (MFS). You cannot file as single or head of household. If you file as MFS, then you cannot claim an Earned Income Credit.
If you are living together and claim Head of Household instead of filing as MFS or Married Filing Jointly–that’s not allowed.
So, while as the wife of the father of a child–you can claim the relationship, and the custody, and that’s all good–if you’ve claimed head of household–well oopsie you can’t do that and you lose.
Now you’re still entitled to claim the exemption with the MFS status, but the tax benefits are not as good as if you had claimed MFJ or head of household.
The IRS will not care if you’ve been switching the exemption every other year, their whole thing is: who gets to claim for the particular year in question and they won’t take history into account (or so they tell me anyway.)
My husband and his ex separated in 2000 and officially divorced in 2007. They share 50/50 custody (one week here, one week there). Since their separation, they have taken turns claiming their daughter on their taxes … one on even years, one on odd. This was never a problem. However, last year, I claimed my step-daughter on my taxes because it was my husband’s turn and he had lost his job and I was paying all the bills … and his daughter was still living with us 50% of the time. Our tax preparer advised us that this was acceptable and I received my return shortly thereafter. Now, more than 10 months later, I received a letter from the IRS advising me to make sure I was qualified to claim this child, as someone else had also claimed her. From what we can gather, her mother claimed her also, even though this “every other year” rule has been in effect for 10 years. My tax preparer has contacted the IRS on my behalf and we are now awaiting word from them. Was I not qualified to claim my step-daughter?
Hi Carla,
Depending upon the circumstances, you have a couple of options.
1. You may file with your ex one last time and split the refund. You say you don’t want to, and that’s probably smart. But it is perfectly legal for you to do that if you choose.
2. Because you have been separated for over the last 6 months of last year, then you (because you have custody of your daughter) may claim the Head of Household filing status. Your husband will have to claim married filing separate filing status.
With you claiming head of household status, you will be entitled to EIC, the child tax credit, your daughter’s dependency exemption and the child care credit (if it applies.)
With your husband claiming married filing separate status, he’s up a creek without a paddle. Seriously, he probably owes the IRS a lot. That’s kind of what happens during the first year of a divorce/separation. The mom gets the kids and the guys don’t know they should change their withholding so they get slammed at the tax office.
So–if the Dad is a good, honest, person, good father, etc. you may wish to consider filing jointly to save his behind. But I’m not hearing that in your post.
If he is not all of the above–then I recommend the following:
1. Do not give him your social security number yet. (Yet, it important.)
2. You go file your tax return, claiming your daughter and all the tax benefits you qualify for.
3. After you return has been efiled, accepted by the IRS AND you’ve got your tax refund in your hands (or bank) then, and only then, do you give him your social security number. He needs it to file his Married filing separate tax return.
4. Do not, under any circumstances give him your daughter’s social security number.
Now can he get all that information from H&R Block because they do have it in their records? Sure he can. He is legally entitled to obtain that information from them if you two filed a joint return with that company. But you don’t have to make it easy for him.
One last thing to think about. If you do decide to file together (I’m not thinking you want to but I want you to know your options) if you file together you can do something called a “split refund”. The form is called 8888 and here’s a link to that: http://www.irs.gov/pub/irs-pdf/f8888.pdf. If you go back to H&R Block, they can so that for you. It also gives you a “neutral terrritory” which can be helpful when you’re going through a divorce. Good luck.
My husband and I split up in Feb. I moved out and have been out on my own with my daughter ever since. She is my child. We had no children together. We have not gone through a divorce yet the papers will be filed soon. I can not afford a lawyer so Im waiting to save enough.
My ex asked me over nad over to file together this one last time-I recently told him NO and now he’s teling me he needs my SS# because he needs to get information from our 2010 taxes. We never had to get info from previous years before and HR Block has done our taxes for years. I am afraid he’s going to file online as if we’re together and try to cheat me out of my taxes. This also includes claiming my daughter. How do I prevent him from doing this and if he does do it, is it considered tax fraud? Can i take him to court? I dont trust him and I want to protect myself.
Hi Melinda,
For your answer I have to say, I’m not sure. When you’re claiming kids for EIC, there’s a whole bunch of questions on a form that wind up getting asked. Most of the time when I’m answering questions online, I’m jumping to some conclusions or I’ve got pretty much enough there to make a fairly safe judgment call.
I don’t really have enough information from you to give you a solid answer. My guess is you’re going to have a problem with the father whether you can legally claim your son or not. The big issue I see here is you say 50% of the year. You need to have your child for more than 50% of the year. So your questions will be—1. How much time did I really have my son for? 2. How can I prove it? 3. If it comes to a fight, will I win? 4. And if I can win, will it be worth it?
So your first issue to settle is; were you on the plus side of the 50% or the minus side? If you’re on the minus side, I wouldn’t even try because it sounds to me like the Dad would fight and you would lose. If you are on the plus side, then you have the other questions. Good luck. Sorry I don’t have a better answer for you.
Hi Kassie,
Just what part of the blog isn’t true? Sounds like you did the right thing by mailing in your return. Sounds like you both got the audit papers. And it sounds like your ex eventually had to pay back the money to the IRS. That’s what this is all about.
Hi Tiffany,
Thank you for your service to our country. Always have to make sure the veterans get their due.
Now for the tax part: I see your predicament. From a tax point of view—I see you has having the custody—no matter what they divorce decree says. The kids live with you for over half of the year. I would have have not problem with you claiming your kids for EIC and head of household status. The 16 year old seems like a sure fire winner and you’ve probably got a good shot at the other one too.
You signed the divorce decree back in 2003—so if your decree has “no conditions—like saying he has to pay child support” then he can just use that decree to claim the exemption and the child tax credit.
Now, since the decree also says that he has custody of the kids—you might have a tougher fight if it comes to that, but I think that you can prove actual custody and win on that one. At least I would take the case. Is it possible you’ll lose—yes, possible, but as I’m reading it I think you’ve got a decent case. Not for the exemption—but for EIC and head of household status. So you see what you’ve got to work with.
I think you’ve got a good case for the split exemption—or maybe even you both claiming one child for everything (since the younger is with him 6 months out of the year.) You’ll be better off if you two can work together and decide an agreement before either of you files, then you don’t have to worry about what comes back at you. (I know, for most people that’s way easier said than done.) Good luck.
I gave up custody of my son due to being in a dve shelter-he did not want to pay child support. Anyways for 11years i have been trying to regain shared custody but he has to agree, He has not and I have not asked to claim our son for 11years – our son lives with both of us, and there is no child support due to when he is in my care I take care of his expensives and when he is in his care he does. Or when ever needed… Can I claim , even though I dont have legal custody but have him 50% of the year and without the father’s permission???
Hey guys. I am not sure where the writer of this article got the information but it isnt true. This happened to me last year. My ex husband claimed my daughter even though he hadn’t seen her once all year and I have sole custoday and rights to the exemption. I freaked and thought I wouldn’t get the money and called the IRS. They told me to simply mail in my return and we would both get the refund. I could t e file bit I mailed it in and got my full refund 3 weeks later. He also got the exemption. Then once tax season was over they sent us both a letter stating that we both claimed the same person and we needed to make sure we were legally supposed to and if not file an amended return.
As the custodial parent regardless of whether or not someone else files first you just mail your return in (not an amended one) and you will also get the refund. If the other party does not amend their return then you will both be audited and you will prove that you had the right to claim the child and the other party will have to pay back the money as well as fees and penalties.
Don’t believe everything someone writes on the Internet! Call the IRS if you want to double check me but I have been through it and that’s how it works. I am also an accountant and have studied tax law.
I’m so glad I found this site. Here’s my predicament:
My ex has custody of our two daughters on paper due to my joining the military in 2006 and being stationed in Hawaii. I’ve been out since 2008, but he won’t sign papers to go back to joint custody. We’ve been divorced since 2003. The new custody arrangement I had to sign states that he claims the children on his taxes every year. In 2010, he decided he wanted to go back to joint custody, but refused to re-do the paperwork to make it “legal”. However, I have the kids every other week, sometimes more if they want to stay more or if he has something else to do and wants them to stay with me.
In September 2011, my 16 year old moved in with me full-time. That means I had her for about 10 months of the year. My youngest lived with me more than 6 months, as well, counting every other week, the extended Christmas break and all the nights I had her when she wasn’t at her dad’s (I keep a calendar of the nights they stay with me for good reason).
I pay for school lunches, cell phones, vehicle insurance for the 16YO (I bought her the vehicle; it’s in my name) and instrument rental for band class. I carry the medical, dental and vision insurance, even though he is the one who’s supposed to carry it, and I pay for all those visits. I pay for my youngest’s braces, as well. In other words, he really does not support them AT ALL.
Whew….all that to ask: When I prepare my taxes, it says I have the superior claim even though he has custody. Can he go back and take it from me if I claim them? I have all the proof I need that I support them (receipts, school records, insurance documents, etc.) even though on paper HE has custody.
What am I in for if I claim them both? Or at least the one who lives with me full-time. (THANK YOU!!!)
Hi Vang,
You have a good question. You get your kids every other weekend and you support them while they are with you. You’re doing your best to be a good dad. What the whole take thing is about is that even though you are a good Dad, the person who gets to claim the children for tax purposes is the parent that the children live with more often. In your case, the kids live with their mom more.
If you claim your children for EIC or head of household when they don’t live with you, then it is considered to be fraud as far as the IRS is concerned. I’m sorry that’s hard to hear. I don’t think you’re trying to do something bad, you’re trying to do right by your kids. I’m just telling you that’s how the IRS sees it.
Now—what can you do. One possibility is for your ex to allow you to claim the exemption. You would get the tax deduction for the exemption plus you would get the child tax credit. She would have to sign a form called an 8332 form for you to do this. She would be allowed to claim the children on her own return for the head of household status and the Earned Income Credit.
Here’s another thing to think about. You’re concerned that she’ll allow someone else to claim your children—their grandparents. If the children live with their grandparents and the grandparents provide their support—then they are allowed to claim the kids. If the children do not live in the house with the grand parents—well then that’s fraud too!
Here’s a link about how to split an exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
It sounds like you really are trying to help your children and that you want to claim them so that you can be a better father. Hopefully, if you present it to your ex that way, she will be understanding and allow you to claim the exemption by signing the 8332. If she is unwilling to sign, you really do not have a case. Sorry. Good luck.
By the way, your English is fine.
My ex has custody of my son and daughter… And she is having one on the way with the other man… She’s telling me that no one going to claim them… She said that if I claim them it’ll be fraud because I didn’t take care of them or support them. I only support them when I see them every weekend or every other weekends. Everything I buy them stays here. Both of them don’t work. They do, but under the table… Who is going to claim them? I’m afraid that if my mother in law or father in law is going to claim them for their tax break on their two business, I’m afraid they might just give her the money to support her other baby that isn’t mine. What can i do to prevent myself from fraud. I’ve been claiming them for the last two years and now it’s NO on
claiming them. Please advise… I just worry that if I she doesn’t want me to claim them and if I take the kids for the weekend and I don’t have enough to support them… She is going to pull something on me.
Sorry for my English..
This is for Kendall—you have custody of a little one, not sure how to prove it as he’s only been in school for a little while.
Kendall, you have 5 children—you have enough kids in the house to qualify you for all the the EIC possible and head of household status. I’m pointing this out because if your ex does manage to claim your son, it probably will not hurt your tax return.
But, I’d file with your son on there anyway. He’s your son and you’re supporting him. And you still qualify for the exemption and child tax credit and that can help you.
If it comes to battle, you have school records—okay school wasn’t 6 months, but that’s a big one. You were concerned because I always suggest using doctor records but your little one hasn’t been sick—congratulations on that. I have a sneaking suspicion that you won’t have any trouble documenting that your boy lives with you. With 5 kids, I be the whole neighborhood could testify on your behalf. (I know my neighbors with the 5 kids—all adorable, hard to miss. Your family, by virtue of it’s size stands out In a crowd.)
You can’t prevent her from trying to claim him, but you know you’re in the right and I feel confident that if it comes to a fight that you’ll win. The school is a big deal and your ex won’t even have that.
This is for Dana. whose ex says she has to let him claim her kids every other year because he pays $100 a month.
Dana, Dana, Dana, Dana. (I like your name.) Dana, I’m thinking he’s not being 100% honest with you. Actually, I’d kind of like to smack him upside the head if you don’t mind. You sound like a nice girl and it sounds to me like he’s trying to take advantage of you. If I’m wrong, I apologize.
But here’s where I’m coming from. $100 a month aint chicken scratch. You cannot raise a child on $100 a month. So ain’t doing you no favors.
Okay, a little, but not much. But here’s the technical stuff: 1. sounds like you were never married so no divorce decree. 2. sounds like no court order or anything of the sort to allow him to claim that child. 3. you have full custody. 4. the IRS does not allow him to claim your child without you signing the 8332. 5. He can’t claim EIC because he doesn’t live with you and your child. If he’s claiming EIC then he’s cheating on his taxes.
Sweetie–he’s paying you to let him cheat on his taxes. That’s not a good thing.
Now hear me out–if I’m wrong about this and he’s got 50% custody and your child spends half of his time over at your ex’s house, etc., etc. and your ex is raising him like a real father does–that’s not cheating on his taxes–that’s being a good Daddy and doing right by his family even though he’s split with the mom.
I’m not hearing the good Daddy song in your post. Unless there is a court order about letting him claim the child–he get’s no exemption. And even if there was a court order allowing him to claim the child, he does not get EIC or head of household status. The way I’m reading it, those are all yours.
This is for Jen whose divorce was finalized in 2011.
You have the children at your house more than the father does and you have to pay child support? Just when I think I’ve heard everything…
So here’s the deal—a 2011 divorce decree means nothing to the IRS. The custodial parent has to sign a form 8332 for the non-custodial parent to claim the kids. But here’s your problem—your divorce decree also says that he’s the primary custodian. You may be counting nights, but he’s got a legal document in his favor. You’ve got some “issues” here. How solid is your ground on the “more nights” issue? I suggest you be really solid if you’re going to fight this one. But remember, even if you win with the IRS, you’ve still got court issues.
The decree gives him the exemption so what you’re fighting for is claiming head of household. (EIC and child care credit if they apply.) Are these worth it for you? You might want to run the numbers first before you put up a fight. My gut reaction is that you’re going to have an uphill battle on this one.
This is for Christa–who’s ex keeps claiming the kids and has no right to.
I answered your question on a different page: http://robergtaxsolutions.com/2011/09/when-can-i-file-my-2011-tax-return/ I got that one first. I posted it here too though because I think it’s relevant over here.
Good luck. I know it’s a struggle but you’re doing all the right things. Thanks for posting.
This is for Kim—whose husband and ex divorced in 2000. (Sorry, I thought I was fixing the order and I only made it worse.)
First, I’m sending you to the custody page: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Okay, so she went to a tax attorney huh?
Ahem: the divorce decree was in 2000 and it has conditions. The IRS does not count conditions in a divorce decree, therefore the only way she can legally claim your son—(okay step son) that you have custody of is for you to issue a form 8332. Those are the IRS regulations.
So by IRS rules you win.
But! And this is big—by court order, you could lose if she takes you to court and the judge orders you to let her claim the son. This is where you want to talk to an attorney—but I’m thinking a divorce attorney. Because even though you win by IRS rules, I don’t want you sitting in jail. And I’m not an attorney so I can’t answer those questions. But here are the questions that I would be asking:
1. When does the exemption rule stop? Age 18 or 21 or when?
2. Will the judge count paying ½ a year of child support as being in compliance with the divorce decree?
3. Is this worth the cost of going to court over?
Now since you’re paying for college and she’s paying child support, I’m guessing that EIC is not an issue. Also, the child tax credit is gone. The value of the exemption isn’t as big for you as it is for other people. Your big issue is the American Opportunity Credit which can be worth up to $2500 in a tax credit. Here’s the part that’s really going to cheese you off. (Okay cheese isn’t the word I was thinking of but this is a “family” blog.)
Let’s say the ex claims your stepson. That means that she gets the American Opportunity Credit—which could be worth up to $2500, based upon the tuition you paid. Yes, you read that right. If you pay the tuition directly to the school then that counts as a “gift” to your son. Therefore, either he can claim the credit (which won’t help because he has no income, or the parent claiming the exemption can. See why you should talk to a lawyer?
I’m sorry about that. I hate giving people bad news. So that you can see what I’m talking about, here’s a link to the IRS website publication 970. You want to go to the bottom of page 13 and read through page 14 too. http://www.irs.gov/pub/irs-pdf/p970.pdf
Bottom line—you win with the IRS, but you need to talk to a lawyer about how that plays out in court.
Hi Krystal,
You just found out that your husband already filed and claimed the kids. Here’s something–the IRS isn’t accepting returns yet. He may have filed, but they don’t have it. Now his return will probably get in first, but we don’t know that for sure yet.
You’ll know for sure that he claimed your kids if your tax return gets rejected when you try to e-file. If that happens, then you’re going to follow the instructions about filing a paper return, etc. Also see the post about exemptions to see where you fit into the mix:http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
But the bottom line is–the IRS does not have his return yet. It’s actually possible the you could still file and beat him (I hate suggesting that, I think it makes for bad tax returns.) But just letting you know.
For Everyone With Custody Issues:
I wrote a blog post especially for you. I talked to a lawyer–whose advice is “talk to a lawyer” basically, but the post should give you a little insight about who can claim what: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Hi Folks,
I’m playing catch up. I had so many posts yesterday that my web guy shot me an email telling me about it. I went and hit approve all, but then I couldn’t answer them. Then I “unapproved” them so that I can handle them one at a time. So if you’re one of the “unapproved” I’ll get to you–except the people trying to sell dustmops. Dustmop people–you can’t sell your dust mop on my website. Have you seen my house? If you had, you would not be trying to use me to sell your stupid mops.
Sorry about the rant.
Hello,
My ex husband and I have joint physical and joint legal custody. It is split right down the middle. In our divorce decree it states that I am entitled to claim both of our children on odd years and he is entitled to claim them on the even years. I just found out that he filed his taxes and claimed both children. What do I do??? Please help.
My husband and his ex divorced in 2000. at the time they had two minor children and it was put in the divorce decree that she claim the son and he claim the daughter each year for taxes. They had shared parenting. In July 2008, he filed for and won sole custody but they left the taxes the way they were in the decree. Their son turned 18 last April and graduated high school in june with child support being stopped June 9th. He has lived with us the entire year and started college, which we pay tuition for and he still lives at home, not at school. He does not work so we support him fully except for her support which stopped early june. The ex informed us that she talked to a tax attorney and they told her she can still claim him because she paid support for half the year (which she didn’t). Can my husband claim him since he supported him and he lived with us more than half the year too?
My kids father has claimed my kids 3 yrs n a row. N nothing is getting done about it so the first year my tax return was rejected so I mailed in all the forms and I mailed I’m the copy of the custody papers we were never married but he’s on the birth certificate. He signed over his rights to the kids 2 yrs ago he’s a wanted felon n he doesn’t work. He will make up stuff like say he’s a handy man does odd jobs and he cleans homes. Then hell claim the kids so if at the end he owes anything by him claiming the kids he comes out on top. So the year before last I go to. file n its rejected again so I go through the IRS again this time with my lawyer and then I get my money.. then last year it was rejected again he claimed again so here we go again I send in all of the proof he signed over his rights he’s never had custody and he hasn’t seen them march 2012 will be 3 yrs. So after a long wait I got my money. I’m afraid I’m gonna go through that again this year. I called the IRS today they said there’s an attachment sayin the kids were claimed twice they said it was on his. And mine and that they dis recieve all my stuff I have nothing to wiry about. Bit if he claims them again I’ve gotta go through this all over again how is this fair?? To keep giving a dead beat father money he hasn’t given me a dime or worked since they were born. My kids r 5 n 3… and its not right I don’t know what else to do. What is your opinion on this matter plz give me some advice on what to do he lies n files head of household to get all the credit he’s a con artist plz help GOD BLESS you.. thanks for ur. Time..
Hi Jan,
My husband and I just finalized our divorce in 2011. Our divorce decree says we have shared parental with the father being the primary. I also have to pay child support. Now he also had his atty state that dad gets to claim the kids every year on his taxes. Here is the kicker, I have the kids more over nights than he does. I can prove that. I have always claimed the kids even when we were married because he owed so much back child support. I have doing some research on this subject and I know that who has the kids for more over nights is the one that gets to claim them. Is that correct?
my ex and i had an agree regarding taxes, i would let him claim our daugther and he would give me 1600, but now he is saying no. im a full time student, so i know theres no way for me to file her but my question is once i do get a job, will he have a right to claim here because hes paying childs support, even though she’s living with me, her daycare is by my home, her insurance card comes to me?
hes telling me that because he has to pay child’s support, he gets to claim her every other year, is there any truth to this?
he gives me 100 a month.
I have a question. I have had my son all year exspect 2 weeks. He is 5 years old. He started school here with me and his mother told me back in march that she wanted him to live with me for good she don’t call him or nothing but the other day she brought taxes. One of the few times we have heard from her. Now I’m not sure if we have proof that its been over 6 months I know we do right at 6 months. But with little is its hard to have proof if they never get sick. But I feel that she might claim him even tho I told her no. What do I do? I have a family of 5 and sometimes its hard taken care of them now I have her try to take money from us when she does nothing to help me with my son
And finally, for Luke,
Yes, your mom can file a tax return with nothing on it. A few years back, the IRS had everybody filing returns even if they didn’t have to in order to claim a stimulus payment. And it won’t hurt her social security. She can even do it on my website (there’s a link at the top). A 1040 EZ is free.
This is for Tori,
There is no way to put a stop on a child’s social security number with the IRS. (But I wish there was.)
If your ex does not live with you and does not have custody of your little boy then he doesn’t have the right to claim him on his taxes. In order to claim your son, he would have had to have lived with him for over 6 months. It gets a little tricky with newborns, but if your ex never lived with you then he’s out of luck.
If your ex files first (which is what he’s trying to do) then your tax return will get rejected in the IRS efile system when you claim your son. Then you just follow the directions above about filing a paper return. It’s a pain in the backside, but you will win. It’s harder to prove where an infant lived because you can’t use the school system—but your son is on your insurance and the IRS accepts that as a form of proof. Also keep track of doctor appointments and things like that. Your doctor will have your address in his system. As you take your son in for his shots (seems like that’s all the time when they’re babies) you’re building a nice little record of you having custody.
As far as your ex giving you the money that you would get for claiming your son—okay, where do I start? He can only claim EIC if he has custody, so if he’s talking about that and he doesn’t have custody and has you say okay to it and you take money from him then he’s making you complicit in EIC fraud. Just sayin’. If he has custody and has a right to claim EIC, then why would he offer to give you the money? He’d be using it for the good of your child, right?
Now, this is Jan the older, cynical mom-type friend talking, not Jan the tax person okay? There’s a reason he’s your EX boyfriend isn’t there? There’s something about him that you don’t trust. I’ve got a feeling that you’re a good person and a good mom and your gut is telling you not to trust this guy. My gut is telling me that you’re right about that. Trust your instincts and do what’s right by yourself and your child.
Okay back to being tax me: I hate this rush to file first thing, but it sounds like you’re in that situation. I’m guessing that your ex does have the social security number already. If not, do not let him have it. Absolutely do not let him have the social security card! If he goes to the IRS they require that he have the social security card in his hand to file a return for him. Many tax places do. Sadly, some don’t. And of course, if he files his own return he won’t need the card at all. Good luck. I hope things work out your way.
This is for Kristen,
Because the divorce decree was in 2010, the IRS will not use the divorce papers to determine who gets to claim the exemption. What they will use is custody. If your friend has custody of the children, then she gets the whole ball of wax (exemption, EIC, Head of Household, Child Tax Credit, and Child Care Credit.) If her ex claims the child and he has no right to, she can go through the process (paper filing, etc.) and she will win.
If her ex has custody, she’s got a problem. The only way she’ll be able to enforce that she gets to claim the child is by going back to court and getting the judge to issue a court order that her ex sign the 8332 form. For that, she should talk to an attorney (I can do tax, I can’t do law.) The 8332 only gives her the exemption and the child tax credit (no EIC, head of household, or child care credit.) Getting a court order might cost her more than she’d get tax-wise so that’s something to consider.
You say they have joint custody. That’s can be tricky, but the big issue is where the children sleep at night. In many families, joint custody means Dad has the kids on Wednesdays and every other weekend, Mom has the kids the rest of the time. You do the math, it means that Mom has the kids for over 6 months of the year therefore by IRS rules she is the custodial parent. But of course you have to look at your friend’s actual situation.
So, back to your question: if she claims both children now, what will happen if it goes through? Answer: if she has custody and files first and gets her refund and her ex tries to file, his tax return will be rejected by the IRS e-file system. He’ll just have to cool his jets because he won’t have a rat’s patootie’s chance to get anything. If she does not have custody and she files first, he’ll be able to fight it and win with the IRS. She should not even try to claim EIC or head of household on either child because it’s illegal to claim that if you’re not the custodial parent.
What about the form 8332? The custodial parent signs it, and the noncustodial parent files it with his or her taxes. In a perfect world, if the ex is the custodial parent, he signs the 8332 forms every year like he’s supposed to as per the custody decree. If he’s not the custodial parent, your friend does not need an 8332 to file her taxes.
With your friend, the power is really with the custodial parent.
Cam she file that without any income? And will it affect her social secuirty?
My ex-boyfriend is trying to claim our son. He actually went threw my papers trying to find my son’s social. He told me he would get more than I would. He also tried to say he would give me what I would’ve received if I claim him. I want to claim my son myself. Can I put a stop on my son’s social? My son will be one within a couple months so this is all new to me. My ex claims 2 dependents just to take less out. He doesn’t really have 2! No other kids. My son is on my insurance threw my job, and he lives with me. No daycare, my family helps me out with baby sitting. My ex is in a rush to file just to beat me at claiming him. What can I do to prevent him from claiming my son. I’m also in the process of filing child support.