It’s a hassle if someone else claims your child on their tax return, but that doesn’t mean you have to give up.
This happens to people all the time. You go to electronically file your tax return and it gets rejected because someone else has already claimed your child. What do you do? I say fight back, and here’s how.
The first step to fighting back is to make sure that you’re in the right. Ask yourself these questions:
1. Are you the biological parent of the child? Hint: if your answer is “I’ve raised her like my own.” You’re going to have trouble winning. If you’re a grandparent, step parent, aunt or uncle; and the person who claimed the child is the actual parent, you don’t stand much of a chance. (That said, some folks will have a credible case, but I’d suggest professional help here because it is tricky.) To go this route you should be the real parent.
2. Did the child live with you all year? If not all year, for at least over half of the year? If you had custody all year you have a much better shot of winning. You absolutely must have had custody for over half of the year to even think of trying this. If you’re on the border line, where your ex had the child for half the year and you had half, this might not be worth it.
3. Is this good for your child? Generally you’d think that having more money in the household would be good for your child, but if fighting with your ex could cause harm to your child, you might want to stop and think about it a bit.
Step two. Once you’ve determined that you are in the right and that you are entitled to claim your child, then what you need to do is print out, sign and mail that rejected return to the IRS —keeping your child as your dependent on the tax return. When you do this, the IRS has to take it in. They have to look at it and it’s going to throw whoever claimed your child into an audit. If an Earned Income Tax Credit is involved then those audit papers generally run 11 to 22 pages long. (11 pages for a straight EIC audit, 22 for an EIC and head of household audit, they’re the same questions it’s just that 22 pages is more intimidating.)
Here’s the scary part, you’re going to get the same paperwork. It is a little intimidating, but you’re expecting it. Because you’re the custodial parent, that is your child lives with you, you can answer those questions with no problem. People who shouldn’t be claiming your kids can’t answer the questions and that’s why you’ll win. If your kids are in school, you’ll need a document from the school saying they attend and where they live. If they’re too young for school, you can get a statement from the doctor’s office that you’re their parent and you pay their medical bills. You’ll have the resources to prove that you’re the parent.
If you’re reading this and thinking, “I can’t prove I have custody of my kids,” then maybe you shouldn’t be filing for them. You will have to provide some proof: school records, doctor’s files, church documents, day care receipts, health insurance records, something professional. Your Mom or a friend can’t vouch for you.
Once you’ve received the audit papers, completed them and sent them back, then it’s a waiting game. Your ex (or whoever claimed your child) will have to complete the same paperwork. The IRS will examine the papers and determine who had the proper right to claim your child. But since it’s you, you will win.
The big downside to this is that it will take months to settle. Months. On the upside, once your ex has lost an audit case for claiming your child, it will be very difficult to ever try it again. You’re not just solving a problem for one year, you’re preventing future problems as well.
What if you need the money now? That’s the most common question. Sorry, but that’s impossible. What you’ve lost, you can’t get back without a fight. If you have more than one child, and only one was claimed incorrectly, you could file now and at least get part of your refund, then file an amended return later. I don’t recommend doing that, but I also understand sometimes you need the cash now.
If you try doing this as an amended return there are two consequences: first, it will slow everything down even more. You can’t file an amended return until your first return is completely processed. An amended return will take about 16 weeks to run through the system before the whole audit process begins so you’re basically adding 4 to 5 months to the timeline for solving this issue. Second, filing a return and amending to add a child reduces your credibility with the IRS. Your documentation had better be rock solid because you will have no wiggle room for doubt if you submit an amended return to claim your child.
One more thing to consider before you go through with this. Call your ex and talk it out. I’m not crazy, hear me out. You’ve read this far, you know that fighting is a big hassle. Before you go into warrior mode, maybe you can negotiate a peace treaty. What do you stand to gain from this? What does your ex stand to gain? It’s important that you file your returns legally, but with divorced or never married couples, you can split an exemption: the custodial parent claims head of household and EIC, the non-custodial parent claims the child tax credit and the exemption. It could be a good thing for both of you and for your child. (Remember, what’s best for the child?) Instead of going to war, you have your ex amend his/her return and you file your return right after the amendment is accepted. It still is slow, but much faster than going through an audit. And it’s a peaceful solution. (Please, don’t even think of trying this if your ex is dangerous. Safety first.)
Finding out that someone else has claimed your child for taxes can be shocking and financially devastating. The assumption is usually that it’s the ex, but that’s not always the case. When you file to claim your child, you will never be told who the other person is. (Of course, if it’s your ex you’ll probably get an unfriendly phone call so you’ll know.) It’s scary how often it’s not the ex, though. Be sure to protect your child’s social security number. Don’t keep the card in your purse. Don’t share the social security number with anyone. Your child needs your protection. It’s hard enough being a kid, being a kid with a stolen identity is worse.
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Note: Here are some links that might help:
EIC questions of any kind: http://www.irs.gov/Individuals/Earned-Income-Tax-Credit-(EITC)-%E2%80%93–Use-the-EITC-Assistant-to-Find-Out-if-You-Should-Claim-it.
How to find free tax preparers: http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers
How to find your local IRS office: http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1
Hi Tasha,
No, your ex can’t claim your kids. They are yours 100%. Claim your child. If the return gets rejected, you just paper file. You’ll win.
Hey Clifford,
I logged out too early last night. You can’t have your girlfriend as evidence as to where your child lived, the IRS will not accept that. So don’t even try to pressure her because it won’t do you any good anyway. (And it’s probably killing her to have you and her father fight.)
I still think you men folk should figure things out together. Maybe you claim your daughter and then you pay Grandpa back some rent money for the time you lived at his house and ate his food and used his shower, etc. etc. Or for being there for your girlfriend and your baby when you walked out on them for a couple of months.
That sounded kind of like a slam. I’m not meaning to slam you, I’m thinking you’re a pretty decent guy–but I’m also thinking you’re a little blind to Grandpa’s side of things. You’ll never go wrong addressing a problem with love and compassion. I know that’s not tax advice, but trust me on this one, use your heart.
My oneyear old daughter father filed my child. My child has stayed with me all her life I take care of her daily expenses. Her father stays in Oklahoma my child never stayed with him. He’s a married pfc E3 in the military. Its not fair for him to file her and doesn’t take care of her.I cannot file taxes because he has already used her as a dependent. Is it anyway he can be forced to spilt the return with me? If so how do I go by doing this?
My divorce was finalized in Sept, 2009. Our decree states my ex gets to claim our daugher for 2009 and 2010 but I get to claim her for the remaining 8 years of her childhood as long as I’m reasonably current with child support. I am 100% current with support and always have been. She claimed her, without question, for the past 2 years; however, I filed my taxes 2 days ago and it was rejected because “someone else” (her mother) has already claimed this child. I explained to my ex that she gets the EIC and HOH but I’m supposed to get the child tax exemption unless she takes me back to court and they modify our decree. I went ahead and filed without my daughter but what can I do about this? I called my attorney and he said that she’s in contempt of court. Please help!
I need to know if a married couple living together and has a child can one spouse file their taxes before the other even gets a w-2 and claim we are separated just to get a huge refund, by the way which left the other spouse to have to pay in a large amount
I have a friend who is married, but separated as of October 2011. The day he moved out, his wife changed the locks and would not allow him back in, despite the fact that he pays all the bills still. In any case, he now discovers that she filed her own separate tax return claiming head of household and claimed their 1-year-old. My friend is the one that had the dependents claimed on his W4, and now can’t claim his son on his tax return because she already did and took the refund for herself, filing separately, claiming head of household and the deduction for the child. That may be the case for 2012, but shouldn’t he still be the one to get that refund since he has supported the family, and had claimed the dependents on his W4, instead of her sneakily filing separately and receiving the refund for herself? Is there anything that can be done?
Thanks for your input!
Well here we go.. My fiance has two boys 9and 10, there father decided to claim them on his return for 2011. He has never claimed them in the past, they do not have any agreement from the court, they were never married. Both boys live with each of them 50- 50 in 2011. he made no money and i am sure he received EIC.
he does not pay for anything beside when the boys are with him( food and shelter), she pays for all the dental and health coverage.
The only thing that he has is the kids address with the school is their fathers address.
i read in code 152 when the children are with the parents 50-50 the tie-breaker is the parent with the higher AGI. Is this true and if so she wins?
please let me know your thoughts
Thanks
Phil
sorry and she is on my public assistance for food stamps and medical as im low income part time job and i take her to her doctors everytime not him i donk know if that helps but i forgot to add that in ‘
Hello,
my name is jill i have a question about taxes and unemployment and child tax credit etc… My daughters father and i have 50/50 custody meaning she is there two weeks and with me two weeks. we have a general child support order and we have no order for who claims our daughter on taxes except one year it says the fallowing: “Petitioner in person with atty Keiffer-Garrison, respondent in person with atty Schultz. Mr. Hawkins is to receive the exemption for the minor child for 2004. Visitation reserved, parties to confer. Parties reach an agreement, parties to prepare an order. JFB” there was only the order for 2004 no anything after we never spoke about if after that i have let him claim the tax exemption except for 2 years this being the second i have signed the 8332 every year not saying any extra years on it.. this year (the second year the first being in 08 i think) i am claiming her completely because he only has unemployment income for the last 1 1/2 years and he has 3 other biological children who he lives with and can claim the persons at hr block said it isnt going to help him claiming her as a tax exemption cause he already has 3 kids to claim maybe 4 his other childrens mom has a child from a previous marriage i think he claims so he says im in trouble my question is am i if there is no order? Ps we were never married and we havent lived together sense 02 the year our daughter was aborn and for the first year of life he claimed both of us then i claimed her for the next year and then kinda nothing was set til the 2004 year and thats the only year i live in illinois if you needed to know.
Hi there, another complicated situation… my ex-husband and I divorced in Jan ’09. We have 70/30 custody (I have the 70) and one child together. My fiance has lived with my daughter and I since Dec ’09. Last year my fiance claimed my daughter on his taxes, our return was greater if he claimed her (and our other daughter that we have together, who was born Oct ’10, for a total of 2 kids) than if I claimed my oldest daughter. I have a my own small business that provides us some extra income, less than $10,000. In October we received a notice that someone else, my ex, claimed my oldest. Now my ex wants to know if he should pay last years taxes and claim her this year or if he should keep last years claim and not claim her this year, however I feel he shouldn’t have claimed her last year to begin with and shouldn’t be able to claim her this year either. My fiance provides more financial support to her and probably makes half of what my ex does. My ex pays child support (always late and has made me wait on cashing checks because he has taken his girlfriend on vacation), but he hasn’t contributed ANYTHING outside of child support. No help with medical, dental etc. I have been reading online and it looks like because we have primary physical custody then we should be able to claim her, however my fiance and I aren’t “legally” married so I am not sure. When we divorced we didn’t use lawyers and I can’t remember if we agree’d to alternate years or if we said I get to claim her every year… however I KNOW verbally (which I guess means nothing) that he said I could claim her every year. Anyways I’m not sure what we do from here, I don’t think my ex should be able to claim either year, plus we CAN easily provide proof of my oldest being in our household for 70% of the year…
THANKS!
My ex and I seperated and I moved out in July of 2010 and paid child support. I filed for divorce in October 2010 and it was finalized in May 2011. At our November 2010 court hearing we set up tempoary parenting plans and agreed through the court to file our 2010 taxes jointly, this is all in the courts minute entry. Our divorce decree later stated the same when finalized in May 2011, that we would file jointly for 2010 and share the refunds for our 5 children. My exwife chose to file herself and claim all 5 children for 2010 leaving me oweing over $4000 as I had been claiming our 5 children as dependentants all year. I have yet to file for 2010 as I can not afford the 4K and fear the IRS would guarnish my acount leaving me homelsss. I know I can go though the courts in hope they will order her to amend her taxes but they can order whatever they want, making her do it is another thing. I all ready need to go thought the court because per decree she was suspose to give me the first $2000 from taxes to offset the division of our property. I just want to fix things as to not owe $4000. Besides going through the courts what else can I do?
hello-
I tried to file my taxes from home, The father and i share custody which is 50/50 I pay child support and medical insurance. I have the childrens 3 weekends out of the month and all vacation times, i also pay child care however i pay it cash so i cant claim that i pay that out on my taxes. The father claimed them and now i have to pay when i was going to brake even if i put the kids. however it was rejected because he claimed them. I have claimed them almost every year. what can i do. If i mail in my returns the only problem is that he registers them in school because thats when he has them. so i dont have all that information to provide the irs. what can i do?
Ok I was divorced in 2008 we have shared custody of our 6 year old. No agreement in divorce papers on who is toclaim him. He pays 18 a week in child support but he has not seen our son since 2009 doesn’t even talk to him. He text me to inform me he claimed him on his taxes. Can he do that?
Yes. they’ve both been with me since September and still to this day. The money is gonna be used for her. Eventually her healthcare for my child and the mother is going to come after me for money. Child support will also be a factor as well since the mother and I have not went to court about anything since shes been born. The problem that I have with the grandpa, is instead of talking me through it, he just flat out asked if he could claim her, i simply said I was going too, it turned into a fight and then he walked out saying he was going too. The only real proof I have is the mother who also lives with me. I’m pretty comfident she would tell the truth on where my daughter and her have been staying. Would that be good enough proof? We also have food stamps and her doctors have the address that is here. The mother just really wants to stay out of it and not be involved between the two of us. Its understandable cause she cares about us both. If she were to say alongside of me that my daughter has been with us since July even though it didnt say on paper she was with us, would that still be good enough?
The real problem I have is I dont want this guy just walking all over me telling what he can and cant do when it comes to my child. As a guy, we do have pride and at times get a little pig headed haha. According to him he plans to give most of the money to the mother. But who’s to say he just gives her 600. What is he gonna do with the other 1 grand. He was talking about bills that need to be payed at his house. It’s not my daughters responsibility to make sure his bills are payed, nor is it fair when she doesnt even live there anymore. On top of things, he never had to buy her anything cause everything was already there for her. Thanks for the quick reply btw.
Hi Clifford,
You don’t say, but I’m assuming that your baby lived with you and her mother from September on, right? So technically, she was with you for the most time. Your problem would be–can you prove it? And I’m thinking you can’t prove it so if it goes to a battle–it’s not looking good.
But let me ask you this. (Because I’m an old grandmotherly type nosy busy body, okay?) What would you do with the money? How would you spend it?
Now, what do you think Grandpa would do with the money? Realistically. You don’t have to write back, just answer in your head.
Now–if either of those answers involved “taking care of your little girl” then that’s who really should get the money. That’s what EIC is really for–it’s for the kids.
So–if you were thinking in terms to taking care of that little girl of yours, then I think you should go to Grandpa and explain–this is what I think is right for my daughter. Show him a plan and how you’re a responsible adult, good provider and all that.
And maybe Grandpa is thinking the same thing and he’s got a plan for taking care of your daughter that makes sense too. Bottom line–you and Grandpa make it a team effort for taking care of your family and you’ve got yourself a winning situation instead of a fight. I know it sounds corny but it’s worth a try.
Hello. I have kind of a complicated situation but I’ll explain it to the best of my ability, so here it goes.
I have a daughter who just turned a year old. She was born January 18th, 2011. I was living with my babys mom up until early March of 2011. Let the record show, this was her dads home. So we were living with grandpa. Now. I moved out Early March so I was there for 2 months out of the that year, and even though it was his house, I was still with her and taking care of her. When I moved out I was working about 70 hours in a week every week. I got my daughter almost every weekend, if not every other weekend. It was like that from March until July. July the babys mom and my daughter both moved into my place but the records showed my daughter still lived with her grandpa and same thing goes for my babys mom until September, when we moved into another apartment. The grandpa has decided to claim my daughter on his taxes and the mother and I are not seeing eye to eye about things, nor do we ever really, so shes not really gonna side with me. I am on the birth certificate as the father. I am the biological father. I have been taken care of her as well. While she was at grandpa’s nothing was needed for her because we already had stock piles of diapers and wipes, along with formula and babyfood from Wic.
Am I gonna have a problem when I go to file and claim my daughter? Will I basically just win since I’m the parent?
I really dont have to much proof of where shes been at except by words alone. The records only show her technically living with me for 3 months, + the 2 months I was living with her at her grandpa’s. He hasnt had to pay for anything for her.
What are my chances looking like?
What is bound to happen?
Thanks a bunch.
Hi Deundrick,
If the IRS didn’t put a ban on your social security number (and you’d know if they had) then you should be fine to claim your own child on your tax return this year. Assuming of course that the child did live with you for over 6 months of the year and you meet all the other requirements. (You know how it is, if you’ve been burned once, you don’t want to get burned again.)
The IRS will keep the money they say you owe them, but if there’s any left over, you will get that. There will be a delay, but you will get the money.
Don’t do one of those “bank loan” deals that some tax offices do where they take their fees out of your refund. If the IRS confiscates your whole refund, then you’ll have the bank and the tax company after you for fees and they can be even nastier than the IRS.
i wuz audited in 2010 for claimin someone elses child and now owe over 5k. ive now had my own child and plan on claimin her. will dat effect the amount i recieve back and will dey tak what i owe out of my return?
Hi Desiree,
you will want to split the exemption like I explain in this blog post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
Because you have custody–you always claim the head of household and EIC status (if you qualify) and on those times when you ex gets to claim your daughters, then he gets the exemptions and the child tax credit. On years you claim them, you just take everything.
me and my daughters dad just had court today. they ruled that we take turnd each year to claim our four year old daughter. we share legal custody but i have physical meaning she lives with me. shes with me 80 percent and him 20. what do i do?
Hi Kristen,
Basically, your school records showing that your daughter is registered to go to school with your home address is really your best proof. I wouldn’t send the court document saying “joint custody”–clearly you have the child for more time–why give the IRS any ammunition for the other side?
Don’t be surprised if you have to go through this again, these types of “accidents” are quite common–I think they’re even more common than texting while driving.
While school records are best, insurance papers, doctor and dental receipts, and church papers are also useful. But since you’ve got the school papers–go with that.
Hi Ryan,
I can feel your frustration. Bottom line–you both lived with your child for pretty much the whole year. Now, when you broke up in December–the baby went with your ex right? The reason I say that is because that’s pretty much going to be the determing factor there. If you fight it–that’s where the fine line will get drawn and you’ll lose. Now–and this is the part that’s going to bug you–had you stayed together through December 31st and didn’t break up until January–then you would have won because you make more money than the mother.
But, let’s put this all into perspective. You two have a child together. Together, you have to support the child. So–she got the refund but if she’s using that money to take care of your child — well then all is good. Remember, the whole point of the earned income credit is to help families with low incomes take care of their children. For next year, you two will want to discuss splitting exemptions, but for now, I think it is what it is. Sorry.
My husband has had custody by court order of his daughter for 3 years now. It says Joint custody, but we have school records to prove she lived with us. (for tax year 2010), But his ex “accidentally” used their daughters SSN to claim her. She said she amended it. We received our refund in July, but I just got papers saying we have to prove it because the other person who used the same SSN has not amended. If I have a court order stating joint custody and school records, is that a win for us? I assume she already claimed her again this year even though she lived with us for 8 months out of the year.(which we can prove) How will this play out for us for last year and this year. I have 30 days to prove it for 2010 and i just filed today for 2011 (which I expect a rejection since she already filed as well).
My son was born Jan 14. after he was born we lived with her mother for about 3 months, but i was the sole provider. She didnt work, and we werent charged rent, After the 3 months with her mom we went to live with my parents, again we werent charged rent and i was the only one working and providing for our son, as well as her and her daughter. We moved out and lived together for a perioud of about 3 months, then went to live at her dads for a while. It was obviously a tough time. Around December we broke up, but we had made an agreement that she would claim but we would split it, since i was the one paying for everything and she would get more back. Now she doesnt want to split it with me, and Im throughly upset cause she didnt spend any money throughout the year. Can i claim my son instead of her under these circumstances. Again she only worked for about 3 months of the year, and still wasnt contributing almost anything to the support of my son. HELP!!
Hi Mickey,
Let me make sure I’ve got this straight. You supported your nephew financially. The big question here will be–where did he live? If I’m reading your posting right–he lived with you.
If he lives with you, and you are the custodial guardian, then you claim him. Forgive me for being a little snarky but–your sister’s really got some nerve if she lets you take care of her children and then comes along and gets you in trouble with the IRS for doing so. Sorry, exes do bad things, sisters are not supposed to do that.
And you’re not just in a little trouble–the IRS froze your social security number so you can’t claim EIC–she messed you up pretty good.
Now it sounds like the IRS is going to unfreeze your account, but you’re still out all that money. This is crazy. I think you need to go see a professional and get some help. (I mean a tax professional, not a shrink. I got banned off of Yahoo once for saying see a professional and someone thought I was telling him to go see a shrink.)
But as I see it, you’re the one who should be allowed to claim your nephew. You’re the one who he lives with, you’re the one supporting him. You’re the one who’s getting the short end of the stick!
Maybe I’m not seeing something, which is why you want to talk to someone in person. This is too important to leave to an online forum thing like this. Money might be tight, but this could be worth thousands of dollars to you. I’m in St. Louis, but you can find someone near you by going to this website and typing in your zip code: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx?Token=
I really think you deserve a fair chance at claiming what’s rightfully yours. (And you deserve a sister that treats you better. You can borrow mine. She used to make me eat my spinach when I was a kid but since I’ve grown up she’s been pretty cool.)
i have financially supported my nephew for almost 2 years now i claimed him and his sister last year and when she started school she went back to live with her mom, but i still have him. I recieved a letter in the mail that his ss# was used a the year he was born to file taxes and some1 was overpaid, the letter said my ss# and his were frozen but if i paid back all the overpayment they would unfreeze them and could use them to file in 2013, i dont understand any of this i hope im getting it right, when i spoke with the irs she asked for all of my info and if it was the same as last year i told her my niece no longer lived with me and why, so she calculated my taxes and said that would pay all the overpayment, but now the birth mom who hasnt even had him wants me to pay it out of my own sons taxes from his father so she can claim my nephew, but i think my return and the overpayment has already processed what do i do
Hi Jennifer,
You can file a paper return. That will start the process, it will go to the IRS and you’ll go through the whole audit thing like I described in the post. It will take time, but eventually you will win.
Hi Donna,
Sweetie, you’re on the wrong page–you and your fiancé are together (it‘s okay, I just was surprised to see you posting here.) You’re totally cool. Do you and your fiancé live together? If yes, even if your fiancé works nights, then you son still lives with him.
The beautiful part about your situation is that you are working together as a family unit. The three of you are in the process of building a future together so you are able to work together to do what is best for your family. Run the numbers both ways–what’s best for the three of you together. Do whatever gets you three the most money and put the extra towards that wedding of yours!
Congratulations!
Hi Tim,
Here’s the big question for you–Does your divorce decree state anywhere that your ability to claim your children on your tax return is contingent upon you paying child support? (Or any other contingency?) The reason I ask that is because if you have no conditions, then you can just mail a copy of the relevant pages of your divorce decree along with your tax return.
I would leave out the part that says “if she hasn’t filed form 8332” because that is a condition–that won’t fly–but do mail the part that says you claim child 1–no conditions.
Now, you mention initiating a contempt of court charge, that’s where I defer to your attorney, I cannot give legal advice. (I always say, what’s the cost vs. what will you get in return?)
Bottom line, as I understand your divorce decree–you are allowed to claim one child’s exemption. This gives you the exemption and the child tax credit. She is allowed the child for head of household and EIC purposes. (Splitting an exemption.) I think you’re aware of that but I just want to make sure that you understand that’s all you get. Good luck.
Hi Brian,
The important issue is not October 23-December 31–your issue is: Can you prove that your daughter lived with you for more than 6 months of the year? If you can’t do that, then you have no case. Sorry. Next year you’ll be able to claim her.
If your daughter did live with you for mover 6 months of the year–then school records are the most important factor. After that, health insurance, church records, medical records, things like that. But because your daughter is 15–school records are number 1.
Hi Maria,
The first thing I think you should do is to sit down a prepare you income taxes. (You can even use the 1040.com link at the top of the page. You can use the free trial just to get your numbers straight. First do your taxes claiming all four of your children and see what your refund would be. Next, take off the two children that your ex claimed and see what the difference is.
Now, after you’ve looked at the numbers–is it worth fighting over? How much do you really have to gain? And what is the risk?
Here’s why I recommend against fighting: you and your ex both had custody of the children. You both lived with your children for the entire year. I’m guessing that you were not married (if you were then that’s a whole other problem.) So in all fairness, each of you claiming two children is the fair way to handle your problem.
But–you don’t want to be fair, so what happens then? You two are into the IRS tiebreaker rules–who gets to claim the kids? Rule 1–exemption goes to parent–you’re both parents. Rule 2–exemption goes to parent with longest amount of time with children–you had same amount of time. Finally rule 3–exemption goes to the parent that makes the most money–you mentioned that the kids were on his insurance–usually the parent with the insurance is the one with the higher income–you could lose claiming any kids at all instead of getting to claim the 2 that he’s letting you keep.
I think you should claim the two children that you can. You may have split up, but you’re still going to have to deal with the father of your children for the rest of your life. Play nicely.
Hi Lily,
I’m a little confused so if I’m getting my facts all messed up please straighten me out, okay? Your daughter lives with you and has lived with you for the past 5 years. Your divorce decree states that you ex is the custodial parent, but the reality is that she’s not.
Is that all straight? If yes–then the custodial parent gets to claim the exemption, child tax credit, and EIC. (You don’t care about head of household because you’re married.) The way I see it–you are the custodial parent.
Unless I’m missing something–I think you should claim your daughter on your taxes. You’ll probably have problems with that because I’m guessing your ex will do the same but you’ve read the whole bit about filing a paper return etc.
So, if it comes down to an audit–where does your daughter go to school? That’s pretty much going to be the deciding factor. What have you got to prove your case? But after 5 years, I’m thinking you’ve got everything you need.
Hello,
Quick question, the father of my child just now told me that he claimed our 1 year old on his tax return, if i try to claim him also i know it will not go trough, i needed the money to pay for my schooling and babysitting, I have full custody of the child and has been with me since birth, father comes every 2 or 3 mnths is not involved. What would be the best solution to this. I know i need the money but i also know that i cannot let him do this. Thank you.
Hi, me and my fiance have a child together. We agreed that he claims him for 2010 and i claim him for 2011. We are still agreeing to that. Is that ok to do? He said he doesn’t want to claim and he will think about it for the next years to come. We both spend time with him but i spend the most since he works more. But on every vaction I go on my son goes with me, since my fiance works nights My son is with me more.
My ex and I share custody of our 2 children. According to our 2005 decree, she is the primary, and I have them Fri evening – Sun evening. Additionally, they will stay with me for a week or more at a time over the summer and/or holidays, and I am securely present in their lives. Our decree has allocated that I claim child #1 and she #2 every year. This year I received a rejection claiming child #1 has been claimed on another return. In the past this has never been an issue. Now that I am remarried she has expressed entitlement to not only my money, but also my spouses. I intend to mail my return to initiate the auditing process, but can’t help but wonder if an action to initiate contempt of court wouldn’t be more fitting. Is there any reason I would not be eligible to claim child #1 as a dependant? My ex believes it’s because she filed first. I do recall that our decree stated if she had not filed Form 8332 by Feb 1 that I could claim child #2. Thank you in advance for your guidance.
My ex wife and i have 2 children together and our divorce decree stipulates that we have joint physical custody. My ex kicked my 15 year old daughter out and has not had any contact with her since October 23rd 2011. I informed her that i would be claiming her on my taxes and she told me that she was and sent her tax return in first. When I get my audit papers from the IRS what can i use to prove that my daughter did, indeed, live with me from October on? My daughter saved all her text messages and all but i am not sure whether they can be used are not.
Any help would be greatly appreciated.
Hi Indie,
Thanks for your question. You have a unique situation. First–you asked about splitting an exemption with your sister. Although that’s a good idea, and it makes sense in your case, as far as the IRS rules are concerned–only the parents may split an exemption–not any other relative. It’s too bad because from what your post says, if ever there was a case that it would make sense to do that–I think your case is it.
Now the other thing you mention is that you had the children for 242 days (I’m guessing nights too). Clearly, that shows that you have custody. Your problem, as I see it is in proving your case. Yes, they may have spent the night at your house more, but your sister has all the documents that say she had them. So even though you’re in the right–how do you prove it?
And here’s one more potential problem–this is one of those things where I think you’ll want to talk to a lawyer because that legal stuff is out of my league. But there’s a court order stating that your sister has custody–what I’m hearing is that she’s not in compliance with that court order. How big of a problem is that? We are talking she’s your sister and all, and even if you two are disagreeing over claiming the kids–she had been taking care of them for years. You don’t want to get her into trouble (or yourself either.) Check things out with a legal eagle before you do anything that would cause either of you a problem. Sorry to bail on you, but you want the best advice possible. Good luck.
i have 4 kids , me and my ex were living together last year we recently broke up , i told him i would be claiming all the kids but he did his taxes first and claimed 2 , what can i do to claim all my kids .school records, day care services (which i get help from the city to pay for it) are under my name , and as a single mother with no child support. for doctor visits Im the usual one to take them but the insurance is under his name since he is the one that pays for it thru his employer.. Is there any chance that i can win this ?? Thanks
My daugther is now 14, she lives with me for more than 5 years but because the divorce decree says she is the custodian and should get the taxes for her, she always keeps that money, I don’t pay child support because she lives with me, could I get in trouble if I claim the taxes for her? I remarried and have another child and we loose her credit because our income shows only one child.
My sister has sole custody of my children through a court order (long story) and in the order it states my sister (the children’s aunt) gets to claim my children as dependents (court order was issued in Sept. 2009). I am their biological mother and I have visitation with them. In 2011, I had my children 242 days (they slept over all of those days as well) I wanted to claim my children on my taxes for 2011, since I had them more than my sister did, but she stated I cannot because she has the court order for custody. In your article you state that “parents” can split the exemptions–would the same work in my case? Could I claim my children for the HOH and EIC only and my sister claim them as dependents for exemptions and child tax credits? Is she right in stating I cannot claim them because she has a court order, regardless if I had the children more or not? Also, since she does have custody, her address is registered with the children’s school, doctors, etc. how else could I prove I had them 242 days? I keep a log of all visits and I keep records of text messages, would any of that help prove I had them?
Hi Stacy,
You wrote such a lovely letter, so forgive me for stripping it down to the bare issues that the IRS will see.
1. It looks like the ex might have the kids more than your partner. If so, then she wins on that point.
2. But, it also looks like she has no earned income–there is no earned income credit for child support, welfare, or unemployment. So what’s in it for her? I’m not seeing her side of it.
My personal opinion (which may not be shared by the ex) is that your partner and his ex go togehter to have their tax returns prepared and determine what makes the most sense for the security and well being of the children. (You see why I’m thinking the ex won’t agree?) Because they basically have a shared custody arrangement, I think they have some options and if they can work together it would be best for everyone involved.
But–I’m guessing this won’t happen. Technically–she’s got custody, she can do what she wants. She should sign an 8332 to allow your partner to at least claim the exemption and child tax credit (they do her no good with no income). The 8332 would protect you from her coming back and claiming that he wasn’t allowed to claim the exemptions.
I’m afraid that you’re stuck in a negotiating game. Perhaps, once she sees that she’ll get nothing from the IRS, she’ll rethink her strategy and allow your partner to claim the kids like he always has.
Now if I’m wrong about her having the children for more time than your partner–all bets are off and he claims them for everything. But make sure you can prove it first because you know the ex is going to try to claim them and you’ll have an exemption audit on your hands.
Good luck.
Jan I have a question I need answered. My partner has 2 beautiful children and was never married to there mother they lived together for 6 years and he has always claimed his children. The mother of the children has not always worked and didn’t work any last year and collects child support in order to get state aide. She doesn’t have to pay her rent and gets food stamps and health insurance thru the state. There is no court order for custody and my partner has the kids on Friday thru Sunday sometimes he will get them on Thursday or returns them on Monday’s this year she is saying he can not claim any of the kids because she wants the money.He was even kind enough to let her claim one last year and him claim one since she worked what would you suggest in this case should he claim one of the children as he has always done in the past?
Thanks so much for the info! My daughter just turned 20 last Sept. And yes, I keep everything since being I’m self employed. I just didn’t want to involve myself in an audit and getting stressed/headache showing proof of expenses, income, etc. etc
Hi Agena,
A couple of things for you.
1. Of course you are entitled to claim your grandson on your tax return.
2. Depending upon your daughter’s age, you can probably claim her too, which would also give you the tax credit for her being in school.
So, since the ex already filed, you’ll have to file a paper return and go through that whole process, but you’ve got the records so you’ll win. It will take time, but you are in the right.
Now you asked if you were involving yourself in an audit–an EIC audit is different from a regular examination IRS audit where they look at your books and stuff like that. I noticed from your e-mail address that you’re in a profession that tends to get audited a lot. If you, or people you know have had to go through one of those full examination audits, just thinking about getting audited like that can be pretty scary. But an exemption audit is just to verify who had custody of the child, nothing else. And that’s the kind of audit you’d have. Which you’ll win. (I also have the sneaking suspicion that if you had the other kind of audit you’d win that too.)
Hi, Jan! I desperately need your help! My daughter and grandson moved back in with me Feb. of 2011 due to her and the baby’s daddy splitting up. The dad is paying $75 a week child-support and that’s it! My daughter is a full-time student and my husband and I are forking out lots more than $75 a week to support the baby and daughter….ex….daycare, clothes, shoes, food, etc. etc. The dad received his W2 about a week ago and claimed their son on income taxes without my daughter’s permission! My husband and I were planning on claiming daughter/grandson on our income taxes since being we have supported both of them since Feb. of 2011, but we haven’t received our W2/1099 (I’m self-employed). My question is…….how do I go about resolving this issue. And, if I persue this issue……am I getting myself involved in an audit? I’ve got proof that my grandson resides at our house……and that would be Doctor records, his birthcertificate and Daycare records.
Hi Jeremy,
It is perfectly legal to allow your wife to claim the exemptions on your children. You sign the 8332 form and she claims the exemption and the child tax credit. If she chooses to send you money as a way to help you support your children because she gets a tax refund, well then that’s a good thing for her to do. It is a gift to you and the children. No crime no foul.
Being perfectly technical–what you should be doing is you claim head of household status and EIC (if you qualify) and she should claim married filing separate with the kids’ exemptions. Granted, you won’t get any of the money back because of the student loan default but the refund will help reduce the amount you owe.
Now let me talk about the student loan thing for a minute–one of my clients was in default and she made a payment arrangement on the student loans. We held off on filing her taxes for awhile because one she had made a certain number of payments, they took her loan out of collections and she got her tax refund. This might be a good solution for you–getting rid of a debt because they hold student loand over your head forever, and getting your tax refunds. It’s worth looking into.
Now I’m not an attorney and I cannot give legal advice, but since I’m quite sure that this is how you’ve been filing there’s nothing to worry about. If a person had been allowing someone to claim the kids for EIC that wasn’t entitled to, now that would be a different story. If the rightful claimant for the EIC came forward and filed a paper return, then the IRS would be forced to go through the whole audit procedure etc. Here’s a link about that type of situation, just in case you were curious about it: http://robergtaxsolutions.com/2011/04/will-i-go-to-jail-for-eic-fraud/
I have been separated from my wife for almost 6yrs now. I have tried to keep things amicable between us for the benefit of our 2 children. When it came to tax season, I agreed to let my estranged wife claim our kids due to the fact that I have defaulted student loans. I have read through a lot of the IRS documents and websites and I think I have a pretty good understanding of the code. But I want to be sure. We have no standing custody order nor do we have support in place. However the children do live with me full time. We live in separate states. In the past she has sent some of the refund money and is intending to do so again this year. I am hesitant to take this money for fear I may be implicated in illegal actions. What should I do?
Hi Janie,
I think your husband is a little confused. And I can see the confusion, I went back to one of the IRS documents and I can understand how he misinterpreted it. But–you are the custodial parent. You get to claim both of your children on your tax return and you get to claim everything.
So, no, he’s not allowed to do that.
That doesn’t mean he won’t try–but you’re in the right.
I am currently married to my husband but we have been separated for about a year and a half now. We are not legally separated. He lives in one state and I live in another. We have 2 kids together, and since we separated he hasn’t done anything for our children. Now I just started receiving child support about 2 months ago, but he feels that now he’s paying child support, he can fee free to claim our son. I have proof that I take care of my children, that everything they own is from me. Now I’m hearing that if we are not legally separated then he can claim our son, even though he has not contributed to anything towards the kids. Is he allowed to do that??
Hi Zach,
I’m attaching a link to another post I’ve got about court ordered exemptions: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
You could wind up with a never ending battle, but hopefully it won’t be that way. Hopefully, your ex will follow the court order. If she won’t, you might want to consult with an attorney to see if it’s worth having the court enforce it. It sort of gets down to, “how much is it worth to you?”
Divorce decrees and other documents signed after 2008 hold no sway with the IRS. It’s all about custody. Since you really are 50/50 you’ll have a more difficult time proving that.
Under IRS rules, if there’s a tie—the winner is the parent. You’re both parents. After that, it’s the parent who had the child the longest—you’re exactly even. After that, it’s the parent with the highest Adjusted Gross Income. You might be able to win on that one—but if your ex can prove more days, then you’ll lose. Good luck.