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
Hey Mengo,
You’re really mad at your ex right now and rightly so. You’ve got the proof that your son lived with you for more than half the year so go ahead and file the paper return and get the process rolling. As you can tell from many of the posts already here, there’s not much you can do to prevent it from happening again. But keep good records and all that good stuff.
And you’re really mad! You’re talking about calling off the joint custody. First–get the tax thing straightened out. After you get that taken care of, do some serious thinking before you try to take away the joint custody. It sounds like she was being greedy and selfish–but what would it do to your son if he couldn’t see his mother any more? There must be some good in her if you had a child with her, right?
Tax time is stressful and money makes people do stupid stuff. Please wait until you’re not stressed before you make any major decisions about custody. It’s okay to be angry (she did wrong) but make your decisions based upon the love you have for your child (oops, I’m getting off of my tax advice track, sorry.)
my ex-wife and I live in two different stats. We have a court order the states that i claim her on odd yr and she claims on even yr. she dose not live with me nor did she come up for summer break (only because her mother did not put her on the plane after i bought the ticket) i had my taxes done and tryed to claim my child and was rejected because her ss# had been clamied. what can i do
I’ve been reading all the posts, and I think I know the answer, but I want to be sure. Our situation is pretty unique. In May 2011 my husband and I got a call from Child Protective Services (CPS) telling us that my sister’s children needed a place to stay for a “little while”, so CPS put them in our care in what is called a Kinship Placement. There was no legal custody arrangement at that time. That “little while” turned into just short of eight months (May – December 2011). In November 2011 my sister was given permission by CPS for the children to stay with her on the weekends & holidays only. I’ve added the nights the children stayed with us, and my husband and I had the children in our care for 211 days. One day while having a conversation with my sister, the tax “situation” came up. My sister informed me that she was going to file the children on her taxes. I had already done some research, and even called the IRS to find out if my husband and I could file. They said yes. So, I told my sister what we were told, and it got UGLY. Now, its no big surprise that she has filed the children on her taxes. I have printed our taxes out, and will be mailing them out ASAP. I understand that I will need documentation to prove that we had the children. I can get school records showing that the 4 year old was enrolled in Pre-K while with us, and I can get the doctor to write a note stating that the children were in our care from May – December. I am going to get a letter from the daycare for the 2 year old, and I am also going to get CPS to write a letter stating that they put the children in our care for this period of time. Should I also get a letter from our church stating this? I saw that you mentioned this for others, but is it a letter or a form that they fill out? I know that I will probably have enough to prove my case, but it really eats me up that my sister did this. The sad thing is, not only did she and her boyfriend NOT have the children for a minimum of six months, she did not provide a single dime to assist us while we were caring for her children. And to top it off she was bragging about what she was going to do with the money – and it is NOT going to go towards the care of the children. Is there anything else that I can/should do? Is there a reason why my husband and I really couldn’t file the children on our taxes? Thanks in advance for your help!
Hi Jan,
I have read most of the posts on this blog and am feeling much more at ease about my situation. I guess I would really just like another few encouraging words about the probably outcome.
My husband and his ex-wife divorced in April of 2008. They seperated in 2007 and in November of 2007 we were living together. My husbands son was living with us at the end of that year and his daughter was living with his ex-wife. They filed a return together for 2007. By March of 2008 my husbands daughter came to live with us. At the time that the divorce decree was being drawn, it stated that my husband had physical custody of their son and his ex-wife had physical custody of their daughter. By the time the divorce was finalized, their daughter had already moved in with us.
We never changed the way the decree read because we are all very amicable towards one another. We also were aware that she did not make much and that child support would be really hard on her. So we never changed it.
That year my husband and I claimed both children. I claim 1 dependent on my W4 and my husband claims 0. This is how we have continued to do this. My husband and I have claimed both children ever since.
That brings us to the present: I attempted to file our taxes last night and awoke this AM to a rejected return due to my step daughter having been claimed on another return. My husband called his exwife and she confirmed that she had claimed their daughter. Our kids live with us, we take care of all of their needs, and our daughter only goes to her mothers 3 weekends a month and 4 weeks out of the summer. Our son probably only goes 1/2 of that time to his mothers.
I just want to feel reassured in that I am going to send the IRS my return by mail, claiming both children. Should I send the proof with return? Or should I wait until they ask for the information?
Thank you, Kristin
Question I went to court earlier this year for my two daughters (who live with their mom) and in the court paperwork it states that I get to claim my oldest starting in 2011 tax returns….Today I went to file and it got rejected saying someone has already claimed her which I would say that would be her mom….Is there anything I can do about this since it is stated in our court paperwork that her mother agreed that I get to claim her?
In February of 2009, my ex and I separated. I worked nights at the time, and he worked days. Because of that schedule, I had our son all day, and he had him at night. In December of 2010, my ex filed for divorce and ran off with our son. He had a temporary restraining order put on him a week later to keep our son in the city, and a temporary order was issued two months later that kept the living arangements exactly as they were. He also ordered that we have a bonding and attatchment assesment done because we were both claiming to be the primary provider for our child. The judge said that if the assesment found to be different than what he ordered, we could petition for another hearing to have the temporary order changed.
We had the assessment done, and it was in fact, in my favor. In May of 2011, I lost my job working nights, but because of the judges schedule, we could not have the hearing until July 7th. On that date, the temporary orderes were changed and I had our son five of the days and nights one week and he had two. In september, our divorce was finalized and the parenting time was kept the same.
When I started to do my taxes for 2011, I wrote my ex an email to let him know that I would fill out and sign the form 8332 so he could claim our son on his taxes like we had agreed in our divorce decree. He claims him on the odd years, and I claim him on the even years. He wrote me back to inform me that I didn’t need to do that, because for tax purposes, he was the custodial parent this year. We have been arguing about it ever since and have both been doing extensive research to determine who is in the right. At first I had just assumed that since our divorce decree states very clearly that the child is scheduled to reside with me for the majority of the time and that I am the custodian for all federal and state purposes, that it would apply to taxes as well.
We have both called the IRS and been given different answers as to who is the custodial parent. (I do not know what information he gave them). I was told that there is a special exception for parents who work nights. Over the entire 2011 year, I have had our son for almost 1,000 more hours than my ex did. However, up until July 7th, most of those hours came from day time hours. I only had our son over night on Sundays. He is not of school age yet, so I have no way to show that he would have been registered in my school district. After July 7th, I had the majority of the nights, and my hours passed my ex’s very quickly. I also called and H&R Block tax preparer who told me that I was the custodial parent based on the latest order from the court.
When my ex called the IRS, he was told that he was the custodial parent because the original temporary orders gave him 6 nights out of the week, and it was in effect for more than 6months and one day of the year. I do not know if he informed them that I was working nights or that I had our son all day.
From what I keep seeing through all of these posts, the IRS doesnt seem to care what is in a divorce decree. How do they calculate custody in this case? I have no argument with claiming our son as a dependent, I will let him have that like I agreed to. My only question is about determining custody. This is way more confusing than I anticipated it would be. I have a constant headache trying to figure this one out!
On a side note, he is already remarried and is able to claim four other children on his taxes as dependents and for the EIC. At this point, I just feel like he is being greedy.
Hello, i have a question. My ex husband wants to claim my son for taxes and i have sole custody and sole posession in our decree of both of our children. We had agreed to him seeing them every other weekend ( but he doesnt always take them).he pays court ordered child support $150 a week for 2 kids but he treatens to take me to court. Is is possible for him to get one of our kids?
Help me please!!!!!!!!!!!!!!!!!!!!!!
Well, My ex and I have been separated for two years now and now we have joint custody and we both agreed to take turn claiming tax every other year. this year on 2011, she just decided to claim my son on my year which she have already claim him for last year and that really tick me off. I got mediation paper saying my son stay with me for the school year and she get him for summer. Which, in conclusion, that means I have him more than she do. Also on the paper it stated that I, the father, will attend to all of his medical and dental issues which makes me the primary. so my big question is, is there anything I can do to this unfairness and what can I do to stop my selfish ex from always doing this? I have decided I am going to call this joint custody off and decided to go to court and try to get full custody and might even file child support on her since I now have proof that she only needed our son just to gain some money or benefits out from my son. please reply back as I am desperately needing help!!!
Jan,
Thanks for your advice. I really appreciate it. I’ll claim single and let my girlfriend claim single and claim our child and get all the child deductions as she would get more money back than me claiming HoH and getting all the child deductions, based on her lower income and EIC.
Judie,
Your ex is “supposed” to have your permission to claim your child. Now you see how many people have posted about exes who claimed kids without permission–you get the picture. He’s not supposed to claim your child, that’s why I want you to guard that social security card like it’s gold.
well his name is not on the birth certificate and he doesnt know theher social so thats good. i didnt live with my parents. but they have all the receipts of everything they bought from day one. would that be of use?? but what your saying in order for him to be able to claim her i have to approve and sign?? he cant just do it on his own?
Hi Blanca,
You’ve got a tough case. You’re going to have to prove that you lived in separate housing. You’ve got a receipt, but you’ll need to show a real year. Try checking your bank statements–did you write checks? How did you pay?
I worked on a case very similar to this before and we lost. I just couldn’t prove she was separate–that’s going to be your big issue. In addition to the receipts for the rent, or bank statements showing you paid rent–you’ll want a lot plat or tax plan showing that there are actually two placed to live at that one address–or take a picture of the house versus the studio showing that they’re two differerent places. They’re not going to come out to look so you’re going to have to take it to them.
Chandi,
Do you actually have the kids for one more day? If so, then go for it.
My ex has been claiming my daughter for two years, i never saw a dime. Ive never sign anything. in 2009 he claimed her he never lived with him i have full custody. We decided to try to work thing out he filled my daughter in 2010 with out me knowing. The only thing about it is we have the same address for 2010 but we did not live in the same house. I lived in the studio and he lived the other house with his mom. How do i proof my daughter didn’t lived with him.. i paid rent bought my food, took care of everything. i think i only have a receipt from his mom. I was getting assistance for a few months. He paid child support we went to court living under the same address but we always clarified that we lived in seperate houses stating same address.
Hi Judie,
I don’t have all the information I need, but here’s what I can tell you. Your ex doesn’t have custody of your baby so he can’t claim EIC or the child tax credit. You may chose to allow him to claim the exemption and the child tax credit by signing the 8332 form. It’s your choice–if you choose to do this, I’d make sure you’re getting something for it IN ADVANCE! He has to pony up or you don’t sign the form. Do not let him have the social security number until you’ve got something.
Now about your parents. In order for you parents to claim your child, your baby would have to live with them. You cannot sign an 8332 form over to your parents. (Which is really too bad–I think that’s a law that they should change.)
But–here’s an idea for you. Did you live with your parents while you were pregnant? Did you live with them for over 6 months during 2011? Because, you say you didn’t make any money. It might be possible for your parents to claim you as a dependent–and because of that, then it would be logical that they claim your baby as well. This might be an option for you.
Hi Erica,
My gut reaction is that you should go for it. As I understand it, your decree has conditions, that makes it invalid as far as the IRS is concerned. Plus–part of the condition includes your ex having custody and he doesn’t. I’m thinking you should fight for everything. (And you can go back as far as 2008.)
Hi Alice,
You’ve done a lot of research and I’m sure you already know that I cannot give legal advice.
My tax advice is: file now! Don’t wait to see what your ex is going to do because it sounds to me like he’ll mess you up. You know that you have a legal right to claim your kids for EIC and head of household. You know that’s your legal right.
If you want to file for the exemption and the child tax credit–I’d talk to a lawyer and see what your odds are of a contempt of court issue. Good luck, I hope you win.
Hi Lisa,
You’ve got the right idea. The kids are yours to claim. I would put that you had the kids for 7 months, but–your tax lady’s software may have an issue with 7 and may require 12. (I had a problem like that a couple of years back with the software I used to use.)
I honestly don’t think you’d have a problem if you said 12 (especially if it’s a software issue) but 7 is good enough if it works.
Hey Jason,
Your idea is good but you can’t do that. Only parents that are separated can do that. Work together–only one of you can claim the child–you work it out–you can claim Head of Household. She work it out, she will claim single but with all the deductions. Whichever way makes the most sense for the two of you togehter is what you should do.
But bottom line–because you’re together, you can’t split your exception.
Hi Keli,
You’re right. Your agreement can’t allow your ex to claim the EIC when he doesn’t have custody. You understand this.
An EIC audit is about who has the custody–it’s not an audit of your business books. It’s always a risk that you’ll open up a can of worms, but really I wouldnt’ worry about that if you’ve got decent business records.
Dot your “i”s cross your “t”s and go for it.
Hi Kristen,
I honestly don’t know about California paying back everything to the injured spouse. But that’s totally cool! Generally, the injured spouse gets whatever tax she would receive if she was filing separately from her husband–but to be quite honest–California rules are pretty much different from every other state in the country. I don’t dare pretend to be a California expert.
I can’t believe that Block didn’t have you file the injured spouse form before. I would take your return back and talk to a manager. They should make it right for you.
Heres the question. In our decree from this year it states that I have full custody and 50/50 visitation and it shows that I actually have my son 183 overnights and he has 182 overnights. Am I able to claim the EIC and not get in trouble from the IRS? Thanks so much for your answers.
I filed 2009 taxes using H&R block and they told me I didnt need to use form 8379. I got a letter from both IRS and California state saying all our money was taken to pay my husbands child support arrears. I was able to send in form 8379 and get half of the Federal back, but from what i read it was too late for state. for 2010 I used turbo tax e-file and I got all state back within 8 days(surprise!). I just filed 2011 on Tuesday, and am in great anticipation for state to come back again? Does california usually award all taxes back to the injured spouse? I hope so, and if so, im going to take my proof to H&R block!
Hii. I Just had a baby 3 months ago. and i do not work but i am trying to get back in school. Her father has never bought a pack of diapers for her nor has he helped me take care of her. He has a job and gets paid two hundred and som change a week. He doesnt Give Me any of that money for her. My parents buy her everything she needs ever since i got pregnant. i am part of program were they help me get my life on track. i have my own appartment and they pay for everything for 2 years untill i get a job and move out befor the 2 years are up.
well the point is that he wants to claim her on his taxes but iam afraid that if he does i wont get any money back for her. I dont have a job at the moment but would i be able to get taxes for het (just curious) i would let my parents claim her but he will get mad and try to take my parents to court , or what ever he says. He never comes visit her, i have to take the buss every weekend for him to see her. and even when i do he doenst spend no time with her. Can you just please give me an idea of what i could do.?
My ex and I were divorced in 2005. In order to keep him from contesting I had to agree to 300$ (for two children) and he claim them every odd year on his taxes. I was looking through the paperwork today (due to my takes being rejected my tax lady prepared them as she did last year when it was my turn to claim them) It says that he is to have them from Jan 1 until June 31 and i have them July 1 until Dec 30.But he doesn’t have them at all he doesn’t call or anything. they did spend last summer and was made to go to “daycare” so that his wife could go to the gym (they were 10 at the time) and made to watch two babies under the age of two. Not to mention almost sending them to summer camp (at the time it was about 3 years since he’d seen them), So i guess my question is, would it be worth fighting for? Am I allowed to claim them?
So what are the ultimate consequences of the noncustodial parent filing as HOH fraudulently?
I’m trying to figure out how to beat this court order that alternates years. I did not think it was fair a year ago when the judge decided this for us (we were never married and the only thing we had been in court for was the child support he did not want increased from $100 to $311 a month). And I really don’t think it’s fair now that I’ve done some research on it and see that it’s a quite common judgement. How can a lower court overrule a federal tax law that is in place to benefit custodial parents?
This is a link to a summary of judgements that explains, pretty clearly, that federal law cannot be overturned in this way. Now I’m trying to figure out how to bring a case to our circuit court judge based on this.
http://ldgorin.justia.net/article_27-1503896.html
My question involves my son’s father intending to file as HOH with the dependency expemtion. My father is an accountant who does my taxes but my boyfriend’s parents are CPAs with their own business. So I have some good resources. Also, from the research that I have done, now understand how all this works (or should work).
I called him last night to explain that, in order for both of us to get our returns processed quickly, he needs to only claim our son as a dependent while I file as HOH. He then tried to say I was trying to screw him over and he is going to get $5000 back.
He has always been a real pain about tax refunds. One year he claimed our son after I had already filed but he never got caught. How the IRS didn’t catch that, I’m not sure. Honestly, I was trying to avoid any problems by letting him know how he should file. He told me today that 3 CPAs said we could both file as HOH (he has no other children) and he would claim our son. My reply was that isn’t right, we’ll be audited. My son lives with me and he stays with his father every other weekend and a lot of holidays. I have also not signed a 8332. I have concluded that I have every right to claim our son as a dependent, according to federal tax law. The contempt of court thing that you have brought up is stopping me from doing anything rash.
Should I just let him file and see what he files before I do? I would like to catch him on this for my own good reasons I won’t get into but, like the other women here, there are a lot of poor excuses for men out there. I also understand this will hold up my return. My ultimate goal here is to squash this court order without actually having to go to court.
Two of my children lived with me for 7 1/2 months last year. When I filed my return it was rejected because my x claimed one on his return. Since they lived with me longer am I able to claim them? I have dr’s records, school records and daycare records showing they lived with me. I also have a court custody order giving him custody on October. While I had the children he never seen them or supported them and I feel I should be allowed to claim them. And if so what number do I put on my return for how long they lived with me? My tax lady said 12 but I want the right number due to the audit purpose.
My girlfriend and I live together and both support our daughter. Would it be allowed for her to claim EIC and exemption, but for me to claim Head of Household? She makes less so would get more money from EIC, but she can’t really claim Head of Household because I pay more than her for our Rent and Food, although she pays for child care.
She is claiming head of household and getting eic from our son, but since we are not even if we do claim him i guess it doesn’t matter. We will file and think about amending. We will change the divorce decree also.
ps…I am married so the HOH is not what I would use anyway if that makes a difference
Thank you so much. This is such a grey area for us. Nice to know how it will really play out.
Hi,
My ex and I were never married we have a 9 yr old child..back in 2007/2008 we wrote up an agreement with a lawyer stating child support, taxes etc.
He gets her every Weds night and every other weekend. Are paper work states that he gets to claim her on taxes every other year and use the HOH status. BUT she lives with me and goes to school zoned for my home.
This year he claimed the EIC and child tax credit. I spoek to him and he said our paper work states that he is able to do that. I told him NO he is able to claim her as an exemption on his years but that is all because she lives with me and I have proof of her going to school zoned for my house.
Him doing this changes $ amounts by like $3000….if I do go ahead and amend my taxes and they do an audit…are both of us going to have to go through an audit?? Will they audit everything or just the EIC part?? I have a small in home business and it will be a hassle for them to audit everything if that is the case BUT I also do not want to hand over $3000 to him that he is not entited too???? HELP !!
Hi Autumn,
Two things–one, you can go ahead and file now to get whatever refund you do have coming and amend later. This isn’t the best option in the IRS’s eyes–but it’s definitely the best option for people who have some refund coming and need the money now.
But here’s the other thing: you might not want to amend at all. You say that the divorce decree allows her to claim the youngest child’s exemption, right? The exemption gets her the child tax credit and the exemption–no EIC or head of household status. You’re married–don’t need head of household status. And you say you’re losing $1000 by not claiming the child–to me it seems that you’re only losing the child tax credit–which is what she’s entitled to anyway.
The divorce decree does not require child support–so she can actually attach the pages of the divorce decree to claim the exemption. She doesn’t need your husband to sign an 8332.
If you fight, you will lose. Sorry.
Hi Bev,
You’re exactly the type of person I’m trying to reach with this blog. You’ve been getting ripped off for years! It might even be your ex! You go ahead and paper file. It will take time, but you are in the right.
You can go back and amend your returns as far back as 2008–but be sure to get your 2008 tax return in before April 15th or you’ll miss out on your refund that you’re due.
Good luck! Remember, you’re in the right. You’ll get that scary paperwork but you just fill it out and you’ll be fine.
Grant–
If you read the directions at the top of this page–about mailing in the return, etc. But you just said that your daughter goes to school in the mother’s district. That’s going to be tougher on you because the IRS likes to use the school address for proof.
Your job then–is how are you going to prove that your daughter was with you more? What evidence can you pull together that will be compelling enough to make the IRS change who gets her? If you can’t come up with some type of proof–then you’re not going to win the case and you’ll be wasting your time.
she only claimed one of the boys…we claimed the other. it is a difference of $1000 to us. We have asked her to amend hers and she said no, she can claim him…it says in the divorce decree.
My husband and i went to file our taxes and one of our kids had been claimed(my stepchildren). his exwife claimed them. both boys live with us full time, in new Jersey and their mom lives in Hawaii. Joint legal custody is in the divorce decree(the y divorced in 2008) and it states that she can claim the youngest child. She has not claimed him since the divorce, because we did, because he lives with us and in the past year she has seen them 4 days. She pays no child support. i feel the law is on our side, however we can’t wait 16 weeks for our return. Can/should we file without him and get our return then later file an amended return causing an audit? Any information would be greatly appreciated.
Which post? Will I win? My daughter does go to school in her mothers school district and half of the week I transport her to and for
School-but she is equally with me just as much as her mother.
The last time I was able to file my daughter I think was 2004. Only because she had already been filed. She lives only with me and I provide for her. Her father send a very small amount of child support. But has never even seen her in the 14 years that she has been alive. She doesn’t know him or what he looks like. I don’t know who is filing her. It could be her father we don’t talk so I don’t know if its him. I have never fought this mainly because I didn’t know that I could. If I file her this year would I be able to get this year as well as the other years I didn’t receive because someone filed before me? And is 16 weeks the amount of time it would take to resolve this?
Grant–read the post and follow the instructions.
Ok my daughter was born in 2006 out of wedlock. I have joint physical and legal custody of my daughter. I also pay child support. N out court ordered document it states that I am to Claim on a odd years (2011). My ex just informed me she already intentionally claimed her. Now what do I do!?
Hi Jane Doe,
You can’t force him to split the return with you–but you don’t have to–it’s not his money! Follow the directions in the post–paper file, etc. etc. You will win and you will get everything that is rightfully yours.
Hi Lori,
Clearly you understand the rules correctly–and you understand about splitting the exemption. Because your divorce decree has conditions–that is you being current on child support, you won’t be able to mail in copies of your divorce decree to just claim the exemption like you should. Your attorney is right, your ex is in contempt of court. I wish there was an easy way around it, but I’m afraid that your attorney’s going to be the one to solve your problem. Sorry.
Gloria–No, that’s not allowed on so many levels.
1. If you are married and living together you have only 2 options of filing status–married filing jointly or married filing separately.
2. If you choose married filing separately then you won’t get a big refund for claiming your child.
3. If you lie and say that you are not living together and you file as head of household–that’s federal tax fraud.
Hi Pam–
If a married couple is not living apart for the full last 6 months of the year then neither spouse is allowed to claim head of household status. This is important because if you file as married filing separate–which the only two legal options here for your friend and his wife is married filing jointly or married filing separate. A person filing a married filing separate cannot claim EIC–he can claim an exemption, but not EIC.
What should be done: your friend should talk to the ex. She should amend her return, filing with him as married filing jointly and come to an amicable split for the money.
What he could do–he could file a paper return, claiming married filing separately and claiming the child. This isn’t the big money EIC refund–but it alerts the IRS to his ex–and she gets the EIC audit and she won’t be able to prove she was head of household so she gets burned. This isn’t very nice, nor does it help your friend. But, it is an option.
The whole point of EIC is to help families with children. If the wife is using the money to raise the child–he should be cool with it. If she’s using it to buy herself a new husband–well, that could be an issue.
Hi Phil–
If the children are with the parents 50-50, then the next tie breaker is the AGI and the higher AGI wins. Here’s your problem–how do you prove they were with your fiance? The boys school is with the father–that’s the number one proof there. So if you’re going to fight this, then you’re going to have to be able to prove more time with the mother.
Many couples that really do have 50/50 agreements split the kids up–each parent claims one. That seems like a fair compromise.
Hi Jill,
It seems to me that you have your child 50% of the time. Technically, the person who has the child more should claim the child–but you’re right–if he’s got three other kids he’s already claiming what’s his problem? He sounds like he’s not a very nice person. Your daughter is listed n your public assistance, and you’ve got her medical. The important issue is where she goes to school. If her school address is your home, then I’d go ahead and file–that’s your proof. Good luck.
Kate,
You need to read this post: http://robergtaxsolutions.com/2012/01/can-my-boyfriend-claim-my-child-by-a-different-father-on-his-tax-return-for-the-earned-income-credit/
That’s pretty much what you need to know.
Hi Todd,
As far as the IRS is concerned–your wife did what was okay. So, I think you’ll need a lawyer to go through the court to either get her to pay up or amend. (I’m not an attorney but is jail an option where you live? I mean really–she did defy a court order.)
But let me address you other problem that I can help you with: You didn’t file. This is bad–you get hit with fines for not filing and fines for not paying and if you don’t file, eventually the IRS will file for you and oops–that’s the worst of all. So you need to take care of that. (You might want to find a professional to help you. There might be some deductions and things you didn’t realize you could claim.)
And then you could try calling her bluff. This isn’t very nice, I shouldn’t be posting it on the website, but she done did you dirty and so you may have to fight back. (My apologies to any IRS agents who get stuck doing more work because of this.)
You file your 2010 tax return as Married filing separate and you claim all 5 of your children. Mail it in. This throws everything into “audit” mode. Technically, per IRS rules, you’ll lose. And I always say never file a tax return you know you’ll lose. But it starts the audit process and your ex will get a letter. Now your 2010 court order means nothing to the IRS–I don’t know if your ex-wife knows that or not, but that audit letter is pretty scary. And, she did defy a court order to file with you.
First the IRS will send her a letter saying, “Did you make a mistake? Do you need to amend?” You’ll get the same letter. Then it will be “prove it”. It could jar her enough to get her to amend and file with you the way she should have.
Now she could be stubborn and fight and as far as the IRS rules go, she will win–which puts you back to going to court. This is not the best solution–but it sort of sounds to me like you don’t have a lot of options with her. Sorry.
Hi Brenda,
It sounds like the father has custody of the kids more than you do. The IRS will side with him. Sorry.