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
Ah Justin, I’m sorry that you’ll have to go through this, but I’m also 100% convinced that you’re going to win with no problem either. You know the paperwork is coming so get your ducks in a row–school records are usually the best. Having the children on your health insurance is good too. I’m pretty sure you’ve got that all covered.
Now as far as speeding things along with the IRS? Well, if you find a secret to that, let me know. It will take time, but knowing your in the right and that you’ll win will help. (I know I often say, “Good Luck” or something like that at the end, but in your case you won’t need luck–you’ve got a slam dunk
Hi Amanda,
Part of your issue is going to depend upon what the divorce decree actually says and who has physical custody of the daughter.
1. If the daughter lives will you for more than 6 months of the year–then you have the right to claim her. You’ll paper file like I explained in the main post.
2. If the mother has custody, then your issue is more difficult but not hopeless. If the divorce decree has no conditions–meaning it doesn’t say anything about your husband having to pay child support or anything– then you can use the pages in the divorce decree instead of an 8332 form. You can go back as far as 2008 to make changes to the return.
An exemption in the divorce decree allows you the exemption and the child tax credit, it does not give you head of household or EIC. But still, it’s better than nothing.
My husband and his ex wife have been divorced since 2002. They are supposed to alternate years on claiming their daughter. However his ex always claims first and takes the exemption. She has done this for all of our years with the exception of 1. Is the only way to recoup the loss to take her to court? There is no way she would ever sign the form allowing us to claim yet the divorce decree clearly states we can.
In December of 2010 my four children were placed with me full time by social services. For all of 2011 the children lived with me and I provided 100% of the financial needs. Their mother only had 4 hours supervised visitations per week from January through June and missed 40% of those. Even though they were placed with me in December, I was unable to have custody changed from joint to full until July of 2011. (there was an active C.H.I.P.S case open until July) I have not recieved any child support from their mother in 2011. In previous years when we shared placement we each claimed two children and she claimed EIC. This year I claimed all four children as dependants, CTC, and EIC.
You know whats coming next…
I filed my return and it was rejected because she claimed one or more of the children. So I am filing my paper returns tomorrow and waiting for the audit to begin.
Curious of your thoughts on my situation. Anything i should worry about or any preparations i can make to speed up the process? Thank you in advance for you time during your busy season.
Thanks for your response. Yes we have joint physical custody and every 2 weeks I get her a total of 7 days and so does my ex. So it just about evens out. I could figure out who had her that extra day if I actually sit down and take some time to do it but I was thinking our papers that were signed by a judge and all that would keep our agreement. I also reread our agreement and it says one year she gets head of household and i get the dependency exemption then we alternate each year not EIC like I thought. As far as custodial parent I think both of us have that title. But wouldn’t our papers hold up and I should be able to get head of household this year? I know the irs doesn’t care about those things but if I took her to court she would end up owing me the money or something along those lines right? Or is this just gonna be a never ending battle?
Yes I’m sure our 2010 tax returns were probably wrong. So in the future is this gonna have to be a race to see who does there taxes first to claim our kid or is there some way to make this right. Thanks
Hi Nikki,
You’ve got the beginnings of what you need already. Your tax preparer already did your return, now you just need to print out a paper copy and mail it in. That’s how you start the process. Eventually you’ll get a letter form the IRS and you’ll have to prove you have custody, etc. But it all starts with filing a paper return.
Hi Jess,
I don’t hear anything in your court order about who is granted the exemption. If you’re Head of household you get head of household and you get EIC. And unless there’s something specific about him getting to claim the exemption–then I think you get the exemption and the child tax credit too.
But paying child support doesn’t give him the right to claim an exemption, you would have to file a form 8332 to allow him to. Unless you have some sort of court order to do so, I don’t see any reason for you to give the exemption up.
Hi Cassandra,
This is 2012 but when you file your taxes, you’ll be filing your 2011 tax return. (I know it’s confusing. I deal with this every day–I never know what year to put on my checks.)
So, you’ll file your 2012 tax return next year.
And that’s all fine and good except for one thing. Your stepson lives with you for most of the year! That makes you the custodial parent and that gives you the right to claim the child for everything. I’m not an attorney so you should check with your lawyer, but the court order to let you claim the child is generally meant for the non-custodial parent. Custodial parents retain the right to claim children for head of household and EIC purposes so you should get to claim that part every year.
@pbrown–
She claimed she was the grandmother? Okay, that crosses the line and that’s fraud.
You will still have to prove your case–because if you don’t the IRS could believe her. Do follow through, you don’t want her to get away with that. Good luck.
Hi Zach,
You’ve got a couple of issues here. So first let me try to sort things out a little. If I understand correctly, you and your ex have joint physical custody of your daughter, right?
Now–your agreement allowing you to claim EIC while she claims head of household won’t fly with the IRS. Whoever claims head of household is the person who claims EIC.
Only the custodial parent can claim head of household and EIC. The custodial parent may release the exemption to the non custodial parent so that the no custodial parent may claim the exemption and the child tax credit. It’s called splitting the exemption–I’ve got a whole other post about that.
So, you want what’s rightfully yours. So what is that anyway? That’s tougher to determine as nothing about 2006-2009 matters–you were together and working together as a family unit then–old business.
What about 2010? Sounds like both your tax returns were wrong.
For 2011? Who had your daughter more, you or your ex? As far as the IRS is concerned that’s going to be the main consideration. Since your ex already filed, you’ll have to deal with the IRS no matter what. But I wouldn’t make a claim unless you know you’re going to win. If you can’t prove you had your daughter for more than 50% of the year, you’re not going to win the case.
Hi, today i filed my taxes and after the fact the tax preparer called me back and told me someone else filed my son! Im trying to see how do i get the papers to fill out for the IRS to prove that i should be the only one filing my son?!
My ex and I were never married and we had a son. I have sole legal and physical custody, but he does pay me child support through a couirt order that garnishes his paycheck. He has not seen our son since he was 6 months old, now hes almost 2 years old. And we live in different states, I got a relocation order. In the court order it says that I file my taxes as “head of household” and he files “single.” Can he claim our son every tax year. or will I be the one to do it? Or can he even claim him?
I have a step son that lives with us most of the year, and when he was a baby my husband and the mother of the child went to court and filled out an agreement. The Judge says that my husband can claim his son on his taxes in even years. My husband and I have never claimed him and the mother has, now we want to and she is complaining. So my question is this is 2012 do we get to claim him?
Thank You….and yes I do file single every year. You have helped me out so much.
SIncerely,
Sandra
I wrote u earlier. married, lived apart 2 yrs. 2 children. wife lives with girlfriend. girlfriend claimed children dependants-claimed them as her grandchildren, just to get the eic, she cant prove she is the grandmother, shes not!! So will the irs automatticaly approve me, or do i still have to prove my case.
Ok, this is probably similar to some of these questions so sorry in advance. I read all the posts and still seem a little confused with my situation. OK me and my ex broke up in the very beginning of 2009. When we were together (2006-2009) I claimed our daughter and we both shared the money when I got it and I paid our bills and what not. After we split I went and got a lawyer right away and had papers written up so we had joint physical custody. So we both have her 50/50. As far as taxes go what we have down in writing is that on even years I claim EIC and she claims head of household and then on odd years I claim head of household and she claims EIC. No conditions at all. Well this year without even talking to me she tells me she already claimed our daughter on her taxes even though it was my year to claim head of household. Her excuse is I claimed her 2 or 3 years in a row so it should be even now. When I did claim her then we were still together and it was before we had papers written up and it was with her permission and she got a portion of that money too. So now I’m mad because I was planning on paying all our daughters medical bills with the tax money and now I’m not getting anything. What can I do to rightfully get what is mine? Since I have papers signed by a judge do I talk to my lawyer or do I really have to go through the hassle with the irs?
And how much exactly is the refund for head of household? 3500? I might be able to talk her into writing me a check if I can get on her good side…
Hi Stephen,
I’m attaching a link to a different page about court orders: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
If you had your daughter for more than half of the year, then you have physical custody and in the eyes of the IRS you claim head of household and EIC. I’m not hearing anything about a court order that states that she gets to claim an exemption.
I’m not seeing a problem for you with the IRS. I would talk to a lawyer to see if they can get at you with the court order, but tax-wise, if you truly have your daughter for more than half the year, then you should be okay to claim her.
Hi Jodie,
First, if you can avoid the married filing separately filing status (MFS), I recommend that. Now, you may not have a choice, but if you have a choice then the MFS is the one you don’t want.
Now, if at least one of the children lived with you for over half of the year, then you would be allowed to claim the head of household filing status. I have clients that are separated and they share custody and they each claim on of the daughters. Although technically one daughter lives with one parent, and the other daughter with the other—in reality, most of the time the daughters are together switching back and forth at the different parent’s houses.
So here’s what you can do:
1. Make nice with the ex and file jointly with you both claiming the three girls together.
2. Make nice with the ex and you to go together to the tax office to determine the best possible tax results of you both claiming head of household and a combination of the kids.
3. Not make nice and file as MFS. You may be able to claim the girls if you can prove you had them for more than he did but moneywise this is the worst possible solution.
Hi Mary,
What will happen to your ex when you amend your taxes to claim your son? The IRS will send you both letters asking if perhaps you made a mistake. You will say no. (I don’t know what your ex will say, but I’d guess he’ll say no too.) Then the IRS will send you paperwork asking you to prove you had custody. Yippie Skippy, you’ve already got your stuff together. (That’s the worst part for most people.) You will send the IRS photocopies of your documents to the address on the letter. Your ex will run around like crazy trying to find a way to prove he had custody but will fail.
Eventually, you will get your money. Eventually, he’ll get a letter saying that he has to pay back the refund money plus interest and penalties. It is very doubtful that he’ll be prosecuted for fraud.
Will you be able to prevent it from happening again? Sadly, no. Many of the posts I’ve read tell me about exes who do this repeatedly. Although I’ve got a post on a different page from someone who’s been banned from claiming EIC for 2 to 10 years, the IRS is very hesitant to ban an actual parent.
Should you notify your ex beforehand that he will be audited? Mary, you’re a really nice person aren’t you? I can tell you’re nice. Nice is a very good thing to be. I like you. I like nice people. But you need a friend who’s not that nice, so let me be your not so nice friend for a moment okay? Here goes: Are you crazy? Don’t you go telling him nothin! He done did you wrong and now you’re gonna warn him that you’re fixing it? No way!
Seriously, why should you tell him? He’ll figure it out when he gets the notice. The IRS won’t tell him it’s you (of course if he doesn’t figure it out then he’s stupid, but the IRS won’t tell.) It sounds to me like you’ve been pretty up front with him and he still pulled a sneaky on you.
You go ahead and you do the right thing by claiming your children. Don’t worry about your ex, let him fend for himself. Keep being the nice person that you are because your kids deserve a nice mom. Be polite to your ex, but don’t tell him he’ll be audited. That’s the IRS’s job, not yours.
Hi Sarah,
Here’s the facts:
1. The grandmother cannot claim the children because they do not live with her. Period end of story.
2. You and your husband may claim the kids if his ex releases the exemption or if he has a divorce decree giving him the right to claim the kids. When you claim the kids, you may claim the exemptions and the child tax credit—no EIC.
The big issue you may be facing is EIC, because under the circumstances you don’t qualify. I don’t worry about anything else. So it’s not automatic that the father can claim if the mother can’t—everything revolves around who has the physical custody of the children. I hope that answers your question.
This is our situation, my husband’s 2 kids mother has physical custody meaning she has them most of the time. She has never worked and has never had any income she lives off of my husbands child support and her boyfriends running around errands if you catch my drift. My husband has claimed them every year obviously because she has no income and she informs us the other day she was getting her mom to claim the kids?? She can’t do this right? They did not live with their grandmother at all! Since the mother can’t file it falls to the father doesn’t it? Please help with this. Thanks!
Ok so i have read you questions and my ex husband and i are going threw a long divorce as most people with children. I have had custody of our son since 2009. After my taxes got returned for the first year i had the child year long i just filed without being nice and letting her have the credit thinking this year as i told him i am going to claim him this year and low and behold he did it again.
Now i have called the irs and answered all thier questions and they told me he had no legal right to file our child i have court documents showing i have custody, school transcripts showing everything. What will happen do him when i do an amendment for 2 years on him? Will he just get fined and have to pay back the credit ect… or will he actually have a chance of being prosicuted for fraud? And by winning which i know i will i have everything ready for when they ask for it will it prevent it for happening all over again next year? And should i notify him before hand to be prepared for being audited?
Stacie part 2:
Completely different answer–If you had the children 4 days a week–that means you had them for over 6 months of the year. That is physical custody–YOU WIN! I thought you meant that they lived with your ex 100% of the time.
He’s got nothing on you. You get head of household, child tax credit, exemption, and EIC (if you qualify).
Physical presence in your home means everything. Ignore my other answer.
Hi Stacie,
First and foremost, I don’t think your case would be considered fraud by the IRS. You are the mother. Now you probably will lose if he files something because you aren’t the custodial parent, but it doesn’t sound like a fraud type case, more of an “I’m the mom, I thought I could,” kind of case.
So here’s the issue—your ex is not going to file a tax return because he has no income. So this all kind of falls on the grandmother: this is the big question—did the children live with the grandmother? If they did, because she is married, that technically makes the man the children’s grandfather and he may claim them on his tax return—if, and only if, THE CHILDREN LIVE WITH THE GRANDPARENTS!
Now, if the children do not live with the grandparents—well then we can start discussing fraud. (But Honey, I ain’t talking about you!) If the children do not live with the grandparents, then the grandparents can’t claim them.
So, if the grandparents have a legitimate claim, then you could be put in a situation where you have to pay back the refund money that you received because of claiming the kids. There would be interest and a penalty for late payment of tax. If the IRS were to hit you with a fraud penalty, you call me because I really don’t think that should happen in your case.
Now, if the grandparents don’t have a legitimate claim—that is, the kids don’t live with the grandparents—well then I don’t know of any reputable tax preparer that would follow through with the case.
Now, as an Enrolled Agent, I am supposed to advise people to prepare their tax returns correctly—so this is my official Enrolled Agent licensed by the Department of Treasury) advice: you should have your ex sign a form 8332 so that you may claim the exemptions for the children and the child tax credit. You should amend your 2010 taxes and not claim head of household or EIC if you claimed that. That is the official, correct way to file your return.
Hi Sherry,
So your problem is that you can’t file taxes. A couple of things:
1. You actually can file a tax return even if you don’t have income. I know it sounds nuts, but if someone is really claiming your children wihout permission and it’s someone who shouldn’t–well at least you’re giving an alert to the IRS.
2. If the person claiming them has any type of decent legal claim, you might not want to to that as you’ll mess them up, but if it’s someone who really has no right at all to claim your kids–then do it.
3. Here’s something to think about–if you really have no income, how are you supporting yourself? Do you live with someone who’s supporting you? Maybe a parent or a boyfriend, or maybe even just a friend? If that’s the case, that person could claim you and the kids. Now a boyfriend wouldn’t count for EIC or the child tax credit, but he could claim exemptions for all of you. Or a parent could claim you and get child tax credit and even EIC if they qualified.
I know, you asked for one solution and I came up with three–it sort of depends on what your situation is to see what’s best for you. But you can file tax return, you just might not get any money back.
what do i do if someone has claimed my kids on there tax returns this year nd last year without permission from and i have full custody of my kids??? what do i do? i havent worked in 2 years so i cant file taxes..
In 2010 I claimed my 3 children on my income taxes and I claimed HOH. I DID NOT have physical custody of my children, we did have joint legal custody but I did provide 100% of their support for the year. Their father did not have even a dollar of income. he did not work and he did not have unemployment benefits. My ex is upset saying he is going to turn me into the IRS for tax fraud because i did not have the right to claim the children on my taxes. Well he DID NOT file taxes for 2010 anyway so he said his mother was going to claim the children….SHE DID NOT HAVE INCOME IN 2010 only her new husband did. Was I wrong for filing?? Can I get in trouble from the IRS if he does turn me in?
Just to clarify the previous question….when I claimed my children on my 2010 taxes my ex (who was my husband at the time (we were going through court bc he was charged and later convicted of Bigamy)) is upset because his MOTHER tried claiming then on her and her husbands taxes and was denied because I already had claimed them…again I was the sole financial support of my children, they lived with me 4 days every week and they were going to school in the county that I lived in (not their father)….Can I be charged with IRS Fraud for claiming the children?? Was I wrong or right?? since he had $0 income for the year he didn’t even have unemployment the ONLY income he received was my child support payments!!!
Just to clarify the previous question….when I claimed my children on my 2010 taxes my ex (who was my husband at the time (we were going through court bc he was charged and later convicted of Bigamy)) is upset because his MOTHER tried claiming then on her and her husbands taxes and was denied because I already had claimed them…again I was the sole financial support of my children, they lived with me 4 days every week and they were going to school in the county that I lived in (not their father)….Can I be charged with IRS Fraud for claiming the children?? Was I wrong or right?? since he had $0 income for the year he didn’t even have unemployment the ONLY income he received was my child support payments!!!
Hi I have a question about married filing separately. I have 3 children and they lived with me for first 6 months last year and their father second 6 months. Do I have any right to claim any of my kids on 2011 tax return? They currently reside with hime and go to school in his district. We are separate and not divorced yet and his income is twice that of mine.
Me and my ex were never married. We have 2 year old daughter. She has court ordered custody and I have visitation. Our visitation schedule states that we split the time 50/50. I have had her for more than half of the year. I told my daughters mother that I was filing for the EIC and the head Of Household status because I qualified for it. She told me that if I file she would have me charged with IRS fraud. My daughters mothers mother claims to be a tax professional with the college to back it up, allegedly. She told me that I could not claim anything and that her daughter can only file for all of the credits, and that I was ineligible to claim anything because of the court order. The court order states that we have 50/50, but I had our daughter for more than half of the year. Should I be afraid of the intimidation from both her and her mother?
For Kristy M—
I’m not an attorney so I can’t make any calls about going to court. What you can do is file paper returns and submit them to the IRS. You can go back as far as 2008, but you must get the 2008 return in by April 15th.
This is for Keli—
Grandpa—trust Grandpa. I’ve never met Grandpa and I trust his moral compass too. Here’s why: You have custody and you live in New York. Your ex lives in Florida. If you let him claim your child for EIC and head of household, then you are guilty of income tax fraud. I don’t think that’s what you want to do.
Listen to what you’re saying in your post—we’re making an arrangement with your ex and he will give you a payment. Here’s what my IRS ears hear(by the way, I’ve been on the phone with the IRS all week-my IRS ears are in full gear): I’m working with my ex to cheat the IRS but I need a plan for if the boyfriend cheats me. See how that sounds?
Now I’m quite certain you’re not the tax cheat type. I can tell that by your comment about grandpa and his moral compass. That’s why I’m voting for Grandpa—he’ll help keep you out of trouble.
So, you’re receiving unemployment and that’s taxable. You claim your daughter, head of household status and the child tax credit. You’ll have to pay tax on the unemployment so you’ll want the deduction for your daughter and the reduced tax rate for head of household status.
Do you live with your father? If you do, you may be able to allow Grandpa to claim your daughter, but only if you live together and if his income is higher than yours.
But—remember, you’re going to be taxed on that unemployment you received. You might just want to keep the exemption for yourself.
Amy Z,
I have a question–If you each claim one child every year but he claimed both kids for two years in a row without you knowing–how did you find out? Or how did you not know? Didn’t you get rejected when you efiled? Somethings not right here.
But for your question–you had the kids for 5 more days than he did–technically you win–but let’s get real, how are you going to prove more days? Why don’t you and the ex go back to your original agreement and each claim one child? You sound like you’ve got one of the few perfect arrangements of a 50/50 agreement so why ruin that?
You’re a parent now. It’s important to act like an adult, especially if your ex isn’t. Don’t let him get away with claiming both kids–but don’t you go doing the same thing. You should have claimed only one. You should paper file for the prior years to claim one child.
Hi PBrown,
You’ve got an interesting problem. It seems to me that you have the boys for more than half the time–if that’s the case, you’re legally entitled to claim them. Your problem is proving your case. The IRS is going to use school records as the primary form of proof of custody. So my question to you is–what can you use to prove that you have custody? So you might lose this one, even if you’re in the right.
Now about your wife signing a paper to let the girlfriend claim the boys–she can release the exemption to you–as a non-custodial parent, but she can’t sign an 8332 to the girlfriend–so–somethings funky there.
Now here’s another issue for you–you’re still married. This gives you a little power. You have a couple of ways to play this. All involve paper filing a gearing up for a fight.
1. Claim head of household and claim your kids and claim EIC and the whole works. Why yes–if you really had the kids over 1/2 the time–then this is the choice I’d make. You’ll have a hard fight because of the address thing–but get your ducks in a row and go for it. Recognize that you could lose, but I think your case is worth the shot.
2. If you are positive that you’ll lose the head of household issue because you can’t prove the kids lived with you for over 6 months–then paper file your tax return as Married Filing separately. Claim the exemption and child tax credit–no EIC no head of household. You’ll still get an IRS notice, but you win because your children live with your wife–no problem. You get to claim them because you are not divorced. (And, as a nasty little side benefit–the girlfriend gets found out for claiming kids that aren’t hers.)
Good luck.
Married and living apart for 2 year. My wife doesnt work and lives with a girl friend. She has temp. custody of our 2 children,( pending court) I get the children over half the time, not ordered to pay support, doctor and school records shows the girl friends house. I do work and got rejected to claim the boys. They were claimed by the girl friend. Dependants, child tax credit, eic, the girl friend says my wife signd a paper to claim them. Dont the dad get to claim if the wife didnt. I do no the girl friend cant claim eic for them, but what about dependant and child tax credit. I did provide over half to take care of them. What kind of proof do I need if doc and school is at the girl friends address.
Question…. My ex and I have have a week on week off custody schedule. We split everything down the middle. During my week I pay during his week he pays. He has claimed them for the past two years in a row without my knowledge. Previous years we both took one of the children and claimed them. This year I managed to get my taxes in first. I also counted out calendar days and I had the kids 5 more overnights in my home this year? Who is right here?
My ex boyfriend has my son on mondays, tuesdays and thursdays. I have him wednesdays, fridays, saturdays and sundays. For the past 4 years my ex has claimed our son. Can I take him to court for this?
I am so happy I found this site as I have been googling and reading articles all day trying to find a solution to my current predicament.
Here’s my scenario: I am currently a full-time student, a semester away from completing my masters. I currently have a daughter who is 5 years old. I did not work at all last year, I only received unemployment (I am regretting not having the taxes taken out at this point). I live in NY and my daughters father resides in FL. I am contemplating whether or not I should give him the green light in filing for her. Is this possible, if so…is he entitled to the same credits I receive? He currently pays child support and it is not much.
What concerns me the most is, we are making an arrangement where he will give me a certain payment. If he does not hold up his end of the bargin could I just file anyway to then make his null and void? Is it possible to have her paternal grandpa file for her? (I sortve trust his “moral compass” more)
I have no clue exactly what my options are! I would greatly appreciate any feedback you are offering!
Hi Sandra,
So let’s see, you are a working mom, and going to school to make life better for yourself and your child and you get a little break on the weekends. (Which I’m sure you appreciate.) But seriously, the exemption is yours and yours alone. You may–note I say may–release the exemption to the Dad and let him claim the exemption and the child tax credit so that you keep the EIC–but he can’t use it. You cannot release the exemption to his sister so that’s just not going to work.
Oh, you might want to let his accountant know that tax preparers that file false EIC claims are subject to a $500 fine per incident–just in case he was thinking of filing an EIC claim for your ex’s sister–just saying. That’s a new rule this year and since he seems a little behind the times about the whole child support rules he might not know about that either. (Sorry–snarky again. I get mean when I don’t have enough chocolate.)
Now as far as your concerned–you claim EIC, the exemption and the child tax credit. You might not want to claim head of househole–just claim single. If you only make $7,000 it shouldn’t change your refund any. Low incomes with a “head of household” status tend to raise a red flag so if your refund is the same, just file single–it’s a better designation until you finish school. And good luck with that too!
Yes he is old….haha…he mentioned his accountant has over 18 years of practice. The only information I did not mention is that I am a full-time student and I don’t make over 7,000 a year. Wheras he has a full-time job and he thinks because I don’t make enough he has a right to claim her. She does live with me all year and like I mentioned does go to his aunt every weekend and she provides all her items.
Hi Boon,
You and your ex both have custody of your daughter but your daughter lives with your ex during school. If you count the actual number of days that your daughter sleeps at your ex’s house–I’m guessing that he’s going to have more than 183–that’s the magic tie breaker number.
Now, your daughter also lives with her aunt–she is also allowed to claim your daughter because your daughter lives in her aunt’s house–and since your ex has no income, it makes sense for the aunt to claim her.
So, as far as the IRS is concerned– if your daughter lives with them the most–and I think that’s how it’s going to pan out, then it’s okay for the aunt to claim her.
I’m not an attorney so I can’t tell you about going to court–but court issues and IRS issues usually don’t go together. Now you could obtain a court order to be able to claim your daughter as an exemption on your tax return (once again, you’d have to talk to an attorney about that) but being given the exemption only allows you the exemption and the child tax credit. The person who has custody for over 6 months of the year will get the head of household designation and EIC if that’s applicable.
so i have a question both me and my ex have sole and physical custody of my daughter and she lives with my ex for school but she when she is not in school and is on break she is with me. but i have medical benefits for my daughter. since my ex doesnt work and my daughter is being claim by my ex’s sister, whom lives in the same house hold but dont supply for my child since my ex is on welfare. will i be able to claim my child and not make a mistake and is there a paper form that i can go to court and claim my child.
Hi Sandra,
Is his accountant old? You see, if you were divorced in 1983 or earlier, then your ex may have some rights to claiming an exemption because he’d be paying child support. Of course, your kids would now be in their late twenties and you wouldn’t be claiming them on your tax return anyway.
Who do the children live with? YOU! Who provides them a home? YOU! Who gets to claim them on a tax return? YOU! Unless there’s an important piece of information that I’m missing–you win hands down.
Forgive me but I’m watching Mizzou play basketball on TV–I believe what you’ve got here is a slam dunk!
Hi….here is my situation….my ex and I have been split for 8 years and I’ve claimed my daughter every year. She lives with me and she stays at his aunts house every weekend. He visits with her on Sunday for a few hours. He recently sent me a text stating he has hired an accountant and he will go through with filing because he was informed he has rights because he does pay child support every month. If my daughter stays at his aunts every weekend and not his place does he have a right to claim her?
Hi Kellie,
You should fight this. The children lived with you for over half the year–that’s the main point that the IRS will be looking at. You have 11 months, the ex has 1. That’s going to be the bread and butter of your argument. You’ll have to prove to the IRS that the daughter and grandson were with you, but I’m guessing you can. Before assessing you the $7000, the IRS should have sent you a letter saying “Oops, did you claim the wrong child?” (Okay, it’s not that friendly but that’s what it means.) And you should have responded–“No, we didn’t make a mistake.” And then they would ask you to prove you had custody–usually through school or medical records.
It sounds like a step was missed. From what I’m hearing, I think you’ve got a strong case. You might want to take it to a professional and get some help (especially if you missed a step in there) but the ex doesn’t sound like she has any type of a claim on those kids. Good luck.
My husband’s ex wife was arrested for domestic violence against their daughter who at this time also had a 2 month old baby. Long story short, they courts granted my husband guardianship of his grandson and placed his daughter in our home with temporary custody until a count date was set. Before the court date the ex said she will just sign off all custody of the minor child, which she did and the judge signed the papers granting my husband custody of minor child and guardianship of the grandson. We put the daughter back in school and I stayed home to care for her son. This went on from January until the end of November. we recieved no child support from ex wife nor was there no child support order for the grandson from his unknow father, so we care for the both of them on our own. well the ex claims them both on her taxes and now the irs is saying we owe them over $7000. what do we do and how can she claim them??? She says cause they moved back in with her in November when the restraining order was lifted, that gave her ground to claim them both for the entire year.
Yes I meant her I would never claim him. But thanks do much for your help!!
Hi Arielle,
Thanks for your post. I think that as far as the IRS is concerned, you’re okay. You split in 2011 so the only way he can claim your daughter is if you sign an 8332 from. So in the eyes of the IRS–you’re good.
Now there is the court order thing–I’m not a lawyer so you would need to discuss that with your attorney, but for him to enforce that court order he’d have to take you to court to do it. But why would he? If he has no income, then he has no need for an exemption and he wouldn’t get a child tax credit (you’ve got to have some income for that.) So what would there possibly be to gain? (Unless of course he really did have income and then he’d have to divulge that to the court and then he’d have to pay real child support and not $49. He’s in a lose/lose situation.) Once again, I need to tell you that I’m not an attorney so I can’t tell you how a court order would work.
But as far as I’m concerned–you’re in good shape with the IRS for claiming your daughter. (And I’m allowed to give that kind of advice!)
Now one thing I just want to make sure about. At one point in your post you mentioned claiming “him” instead of “her”. Did you claim your ex as a dependent too? I’m thinking you were thinking of your ex while writing about your daughter so you said him accidentally. If I’m wrong and you did claim your ex–well then you shouldn’t do that because even though he makes no money, he’s no longer related to you and he doesn’t live with you so you can’t claim him–let his mama do that. (Oh was that snarky? Oops.)
You do mention that his family has money and has a high dollar attorney so that’s always going to be a concern for you in the back of your head. So while it doesn’t make common sense for him to force a court order (‘cuz there’s no money for him to do it) if he’s a vindictive little twit then he might give you trouble just for the sake of causing trouble. (Oops, got snarky again.) If that happens–the worst that he could do is force the exemption and the child tax credit from you–you own the EIC and head of household–he can’t take that away from you.
Since you should be getting a nice chunk of money back from the IRS, take $2000 and stick it in a savings account. Let it be your “war chest” in case there’s any kind of fight. Hopefully you never need to use it, and now you’re on your way to saving money– it’s a win/win for you. From what you’re telling me though, I wouldn’t lose any sleep over your taxes. If he does give you any trouble let me know.
Dear Jess,
I’m sorry about your problem. The sad part is, you could very well have this same fight over and over. The only hope is for your ex to wise up and not do it again. You may have noticed some of the other letters, one fellow, this happened to 4 years in a row.
The IRS is cracking down on crooked preparers who sign off on bad returns–it’s now a $500 fine to us every time we don’t do what’s called “due diligence.” The catch is, if your ex lies, or files his own return, it’s kind of hard to prevent him from making the claim.
But you know you’re right, you’ve won before, and you’ll win again. It just stinks that you’re the good parent and you have to wait for your rightful tax refund while your ex plays with money that doesn’t belong to him. Sorry.
By the way our court order came into place in 2011