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
@ Lisa,
What you want to do is paper file your tax return. Then you’ll go through the process of proving your claim. It will take time. I have found nothing yet that can prevent it from happening again. Sorry.
@Tiffany–I kind of figured you had someone typing for you.
I’m guessing you mean the form 886 H DEP. It’s the list of stuff you need to pull together to claim your dependents. Here’s a copy of one: http://www.eitc.irs.gov/public/site_files/F886-H-DEP-2011.pdf
You dispute your ex’s claim by paper filing your tax return. But the 886-H-DEP lists all the documents that you’ll need to prove you are the rightful person to claim the kids. Good luck.
My daughters father claimed our daughter on his 2011 taxes, without my permission. I have sole physical joint legal custody of our daughter and she lives with me full time. I did not sign over the paperwork needed for him to claim our daughter on his taxes. Is there anything I can do legally to change this and prevent this from happening in the future. I feel that he has illegally claimed a dependent on his taxes, causing tax fraud, Please respond back at the above e-mail address. Thank you!
Thanks so much. I had my sister type for me she is much better at this stuff then I am! I contacted the IRS. Its going to be a lot of work. I have to provide all the court papers when I got custady, from when the kids were taken from her by social services, I have to prove what school and when I registered them for school, I have to provide a copy of finance stuff showing where I was paying her support while I was in Iraq and I have to go on line to print some form that shows that I am disputing this. I dont have the info in front of me but a D something form. The rep told me it could take anywhere between 2-10 months to get this all cleared up! A long time but it will be well worth it!! Thank You so much for your advise!! I really appreciate it!
Hey Marisol,
No you’re not wrong. Now, you’re going to want to check to see if he has any legal right to claim an exemption. Check here for that: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
I’m guessing he doesn’t, but do check the rules. Then, if he does have a right to claim the exemption–okay you let him–but you keep head of household and EIC. If he has no rights–well then too bad for him.
Remember–you don’t need to be afraid of an IRS audit when you’re in the right! The children live with you. I’m betting that you can prove it. Call his bluff. Be strong. You’re right. And the best part is–you’ve already filed first! (Sorry, that was immature. But the IRS does not like it when people paper file a false claim–and that’s what he’d be doing.)
@Lynda Brown–
Let me say this back to you to make sure that I understand you completely. Your ex claimed your son on his tax returns so that your son could get free college tuition for the last four years?
And now, not only do you want to claim your son this year–but you want to go back and change your taxes for the past four years and claim him again?
Am I hearing you right?
Sure–you can go back and claim your son for the past four years–as long as you also pay back the college the four years of tuition that you didn’t have to pay for the past four years. I believe Sacred Heart’s tuition is around $32,000 a year. What are you complaining about?
Did you ever tell your ex “Thank you?”
Well my situation is I have two kids with my ex (3yr old and 9month old), and he wanted to claim the kids this yr, but since they live with me through out the year I claimed them. He does pay me child support. But I believe since they live with me i should claim them, since i support them as well. So i did claim them and notified him. He is upset and is threating me and saying he will also claim them so we can both get in trouble with the IRS. Can I get in trouble if the kids live with me and I claimed them both, even though he pays child support. Was I in the wrong?
I was divorced in 1994. We have joint custody, my ex was to claim our 2 daughters and I was to claim our youngest son. Four years ago he went to college at Sacred Heart which is a sister school of SU where my ex works. In order for my son to go to school for free my ex had to show he claimed him on his tax return. So for 4 years he claimed him. Now that he is graduating I want to claim him again this year and he tells me he is going to. Does the divorce decree which was issued in 1994 stand up? I never did sign anything allowing him to file the last 4 years can I also go back and claim him for the years I did not?
Thank you very much.
@Ms. Spice–
I’m sorry but you won’t be stopping this for good. Sometimes it takes years to get it through some people’s heads that they can’t claim children that they don’t take care of. But–from now on you’ll know what to do and how to handle it.
Thank you very much. Another thing is would he be able to claim her in the future or am I stopping this for good? Which is what I want to do *also I want to stop his mom because she’s just like him, and when my daughter was 2wks old born in Sept.2008 his mom said I can claim her on my taxes like its all about the money but when I was in labor she was saying momma baby daddy maybe but getting money out of it. Also she had him file for legal custody and wants me to have physical custody which was the most ignorant thing a mom can do because you can’t get legal custody without physical custody so he just got visitations, long story short the custody battle started due to him getting a child support letter in the mail to PAY.
@Jamei–
Okay, I don’t know. I mean–it seems to me that if your ex is in jail–that’s a pretty convincing argument that he shouldn’t be claiming your kids. But, I can see the point that maybe he filed before he went to jail? Or, how did he file while he was in jail?
For what it’s worth–the IRS does not smile upon inmates illegally claiming EIC from their prison cells. He’s a post I did about a year ago: http://robergtaxsolutions.com/2011/02/crime-and-taxes/ Since then, the IRS has been cracking down and working on ways to reduce EIC fraud from prison.
So, I guess that since your ex is in jail, the IRS will probably show you a little favoritism if anything. Will the process be delayed for you? I’m thinking not–it will be just as slow as it is for everybody else, but probably not any slower.
Dear Ms. Spice,
First, it’s important for you to know that you are not cranky because you are pregnant. You are cranky because the jerk done did you wrong! I just want to make sure you know the difference. I remember being pregnant (oh so long ago) and people would say, “Oh, you’re just mad because you’re pregant.” That just made me madder. But in your case, you have every right to be furious. Just sayin’.
Anyway–you and your child live with your mom. Your mom provides most of the support for your child. If you do not claim your child on your tax return, then Grandma gets to. That’s legal and right.
Nothing to be done? Hah! Sorry, now I’m mad on your behalf. Your mom can go ahead and file–she has every right to. First–since your ex already claimed your child, your mom should mail in her tax return to claim your child and get the ball rolling. Next, she should go back and amend her old returns claiming your child. In the explanation box she should write: “claiming exemption and related benefits for grandchild, schedules attached.” That’s a proper IRS explanation–unlike the one that’s going through my head and is unfit to print in a G rated blog post.
Good luck with your taxes and good luck with the new baby too!
@Rosie,
I call it fraud, but like I told Betty, the IRS is hesitant to call fraud on the parent. Eventually too, the IRS will catch up and go after the ex for the money–but I’ve seen enought posts where it looks like the ex is getting away with it. Eventually they will get caught. In the mean time–you know the drill and you know when you’re right.
@Betty–
If you get an answer to your question, please let me know. That’s the million dollar question isn’t it? How do we stop people who shouldn’t be claiming our kids from doing it in the first place?
I talked to an IRS agent about that and what she told me is that because family circumstances change, they generally can’t prevent a parent from making a claim. So Betty, you’re going to be filing all that same paperwork all over again. I’m sorry.
But–on the plus side, you know what you’re doing and you know you’re going to win. I wish I had a better answer for you though.
@Tiffany–
Tiffany? You were on active duty in Iraq and your wife claimed your three kids and the divorce hasn’t gone through yet.
This won’t be an easy fight, (but I suspect you’ve seen harder) but it’s doable. First–let’s try for easy. The easiest option is to contact the ex and explain to her that she really needs to file a joint return with you–yada, yada, yada. I’m guessing that she’ll say no, but that’s the decent thing to do.
So when she tells you no–that’s when you go on the offensive. Here’s what you’ve got in your favor:
1. you are still married. While you’re on active duty, you count as having lived in the home with your children–so you technically were with them for the whole year–except for the time they spent in child services.
2. I would paper file the returns and start the process–(assuming she says no to filing jointly). She really doesn’t have a leg to stand on. She did not have custody for more than 6 months–social services took the kids away in June!
Now–why it would be the proper and kind thing for you to try to file together–if you don’t, you will file as head of household–because you were living apart for the last six months of the year and you had custody of the children. She will then have to file as married filing separately–worst tax status of all–plus she’ll lose all the benefits of having the kids on her tax return. (I know, you’re thinking serves her right, but remember she is the mother of your children.)
So I think you have a good chance of winning. (Plus I never bet against a US veteran.)
@ha.baecsky–
Good news for you! I guess you got in there first!
Hello… Thank you for this artical.. My Ex-husband has just done this to me.. I am now mailing out the paperwork today.. My question is, He is serving time in jail for 3 months for Theft by Unlawful taking of $18,000. With that being said, will this delay the tax return when he fails to return the paperwork, due to being in jail? Thank you for you help and insite..
Jamie
I checked the “Wheres My Refund?” this morning & it says this: We have received your tax return and it is being processed. Unless there is a processing delay or you owe other taxes, you should receive your refund by February 14, 2012. Is this good news for me? I hope so!
Hey. I’m curious and need help on my situation.
I’m 23yrs old and I don’t really know how to go about this. I live with my mom along with my 3yr old daughter which has been living in the home with us since birth. My problem is since day 1 my mom has been helping me support my daughter meaning getting her in school, when I was working doing in home care my mom kept her, if my daughter needs ANYTHING my mom ALWAYS made sure she has it if I couldn’t not to mention she’s on my mom kaiser health inurance through her job. The other parent *my daughter dad* doesn’t support my daughter, he says he has this and that at his house but what will that do if she rarely goes over there. He doesn’t pay any child support let along give up any money for her in all the 3yrs she’s been in this world. For 2010 if I’m not mistaking he claimed her on his taxes without my known, he went and got a social security card and everything but I didn’t find out until my mom tried to file her taxes and her tax guy said my daughter was used, well it was a big shock to me since I NEVER gave anyone else permission to use her but my mom. I called the IRS and they said it was NOTHING TO BE DONE and again here we are 2012 and he claimed her after not even a week ago I told him NO because he doesn’t support her my mom does so my mom is using her. Well this guy went ahead and claimed her anyway and my mom tax guy called and said my daughter was used. Will he be able to get away with this if he doesn’t support her and I already told him personally NO he couldn’t claim her and not to mention the money that he gets for her on his taxes is spent on whatever he uses it on, in 2010 he brought over a pack of wipes, a silly cup, a pair of shoes and 2 packs of tshirts and said that was all he can get with the tax money he got back which I.know that was A LIE. How do me and my mom go about this situation in a nice way? *38wks pregnant so I’m highly irritated already and this rubbed me the wrong way* PLEASE COULD YOU HELP ME IN ANYWAY POSSIBLE
my boyfriend has been divoriced since 2000 and his divorce decree states and his ex split years to file the taxes for the 3 kids. He gets odd years, she gets even. She has now filed the credit on the kids all 12 years they have been divorced. She was even held in contemp of court for him to be able to claim them on her year, and she continues to sign off on the form 8332 to give him perission on the even years cause she knows she is wrong, BUT she continues to file before he does and his gets rejected. Isnt’ this fraud? Now the fun part, he does send in the paper return, and winds up getting paid – BUT SO DOES SHE. She never gets audited. We have reported her for fraud, but nothing happens. He only files for the child credit, not the EIC or HOH or anything like that. He is always up to date on child support, and if he is behind, they do take it out of his refund. Also, he pays for lots of things, school clothes and supplies, holidays, bdays, trips for vacation, and they live 5 hours away, so he doesn’t see them as often as he would like – but definitely not a deadbeat dad. Quite opposite – she doesnt work, lives on medicaid, HUD housing, foodstamps, and her husband doesn’t contribute and barely works. THey completely live off the child support. She continues to get away with filing the kids on the returns even though we have filed fraud papers. He has been audited 3 times – ironically on his official odd years, so he has been in the clear. she has not. Makes no sense! I understand she can file, HOH, EIC, etc., but NOT the child credit – isn’t this fraud?
ps help im at wits end how can someone claim a child they have custody the child dont live with the father grandma has full custody of children she got rjected by the irs
this is the 2nd year i had to do ammendment i went to file my taxes one of kids was used i faxed last year the court custody papers showing of have custody of my grandchildren but the father who has never done any thing or the mother for these children get the eic i had these kids legally since 2004 what can i do to stop him from claiming them
Ok. I am in the military. My wife and I seperated in Feb of 2011. I was in Iraq until July 2011. During that time she had our children. In June the kids were taken away by social services. The military sent me home early from Iraq to get my kids out of social service custady. When I got back from Iraq in July 2011 I recieved full legal and physical custady of our children. My wife has never worked in the 8 years we have been married. She got a job in Oct 2011 after I already had custady. She has never paid anything in child support. The divorce has not gone through yet. I am still waiting for a court date. I filed my taxes and it came back rejected because she claimed all three of my children. Do I have any chance of winning if I fight this?
Okay, thank you! No the state return says pending, but federal was approved. Everyone I’ve asked said that he would of e-filed then I would have been rejected right away.
@Shelby,
Go ahead a paper file your tax return. The father doesn’t even live in the same state as your daughter, he’ll have a real hard time claiming that he’s the custodial parent.
@ha.berecsky–
I honestly don’t know. You’d think that you would automatically be rejected. Maybe your ex thought he filed but it didn’t go through? I’m stumped.
Try the IRS “Where’s my Refund?” and see what they say. You have to wait 72 hours before you check it, but it might give you a better clue. The H&R Block notice would have been that the IRS accepted your return–that’s quite possible. Or–maybe your state return was accepted, but not the IRS. I’ve seen that happen.
Bottom line–it looks like you didn’t get rejected. If that’s what happened, then I’d expect a refund. Please write back and let us know though. I’ve never seen a return go through when a child has already been claimed. Thanks.
I e-filed last night (married & jointly) & claimed both of my sons. This morning I let my older sons father know (my ex – never married) & he told me he e-filed & claimed our son as well 2 weeks ago. What will happen now? We share him equally, 50/50. He gets him Mondays & Tuesdays, I get Wednesdays & Thursdays & we rotate the weekends. I get American holidays & he has him for Muslim holidays. There is no court order on who gets to claim him. However, I am the one who receives his SSI for his cancer, his health insurance is under my name & he goes to my school district under my address. I also make more money then him. Who will be granted the refund. I thought once a childs SS# was used it would reject my e-file, but it says approved on the H&R block website. My husband & I really need this refund for our bills, we were relying on it.
Jan
Me and my husband have been seperated for almist 3 years now an have lived in seperate states.. I am the custodial parent all though we still are legally married. I went to file taxes an they rejected it because he has claimed our daugter for the 3rd time. He has not seen her, don’t pay child support nothin. I have proof of daycare, doxtors, food stamps, TANF, etc… what should I do?
@Kyle,
You can go ahead and file by mail. Your girlfriend may get a letter from the IRS asking her if she wants to amend her return–but she’s doing that already so that’s just fine.
After they accept it will they send something in the mail letting me know that it has been fixed or will i just have to try to refile and would it work if i went ahead and filed by mail
I’ve never heard of the form..I want to thank you very much..you have put my mind at ease.I probably wouldn’t even care so much if he was more of a father.its who he did it. And knowing he doesn’t have any other kids and my family is a family of 7. And my husband does everything for mine n my ex kids. Like there his own..your advise is very helpful..thank you again so much.if that form was signed were would I find it..but I’m 100% sure it wasn’t. Just because it was never brought up.he did tell me there’s no paper work saying he can’t file.
@April–
then he really can’t claim them without you signing a form called an 8332. And I’m guessing that’s something you never signed.
Our divorce was finale in 2008.I don’t think anything was sign saying he could or couldn’t claim them on taxes. We never had this problem until this yr.and he didn’t start paying child support until the end of 2009 .so what happens if I believe there isn’t anything signed. Thank you
April,
Of course you have a leg to stand on. Your tax preparer wouldn’t bother with the paper filing if you didn’t. (I’m assuming she knows her stuff. As a group, we don’t like paper filing at all so if we’re going to paper file, we pretty much like to be right.)
But seriously, it sounds like you’re good. Do check the divorce decree post to see if your ex has got anything to support his claim. http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Even if he does–you still get to claim EIC if you qualify–he does’t get that or head of household. (Married filing jointly is a better deduction so that’s what you are, you want to keep it.)
I’m guessing that your tax person was already all over those issues so I wouldn’t lose any sleep over it. It will be annoying, and you’ll have to wait for your money, but your tax person did the right thing.
Hi Becca,
I think you mean that your preparer printed everything out to mail in. You don’t need to amend your return because you were right in the first place. (I’m just being technical, sorry.)
The whold process will take a few months. The best way to prevent it is to guard your children’s social security numbers as if they were gold. Keep those cards in a safe deposit box.
How to check to see if it’s happened before? Did you file a tax return last year? If you claimed your kids and it didn’t get rejected when you e-filed–then it didn’t happen. If you didn’t claim your kids last year–well that pretty much tells you who’s claiming them now.
Hi Kyle,
It takes about 16 weeks for an amended return to be accepted. Try filing again around March 15–see if it goes through. If it doesn’t, try again in April. You might need to file an extension. (Okay, the IRS says an amended return should take 8 to 12 weeks, but it always seems to be longer, that’s why I say 16.)
Hi Chrissie,
You’ve just pointed out some really important information: NEVER LET YOUR EX WIFE PREPARE YOUR TAXES!
You can smack your husband upside the head for that one. Does he realize how lucky he is that you checked? He owes you big time for Valentine’s Day.
Okay–if you truly have equal custody and you are supposed to claim your children on the tax returns, go ahead and go back to 2008. You have nothing to lose and plenty to gain. Escpecially if he’s in the service because deployed armed services members can run the numbers two different ways–double win.
You’ll want to pull out that divorce decree and check it agains the IRS rules: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
But I think it’s worth fighting for. Good luck.
My ex and I have been divorced since 2008. My current husband n I have claimed my to kids on taxes every yr since. I’m the custodial parent. The kids live with me they only see there dad 60 days out of the yr.they are on my husbands insurance. You name it. Well I just found out my ex claimed my two kids after all this time. Even when he texted me asking me if he could and I said no. He did it any way. My tax place had me to the paper tax n send..do I have a leg to stand on.
@JesB–
I don’t believe that you ex sending documents in right now can mess up your refund–that said, I received another post from Stephen who said his refund did get messed up. I’m thinking there was something else there–not his ex getting involved. But I haven’t been able to prove anything.
Bottom line–don’t spend any money until it actually shows up in the bank.
i just filed my taxes and found out someone claimed my 2 kids already..my tax advisor filled out an amendment for me and i mailed it in..i have all documents proving they were with me..how long will this process be and how do i protect myself from this happening again and can i find out if this has happened before?
I was wondering how long it takes for an amend to be accepted because the person that did m girlfriends taxes put my son as ther dependent so when i go to file i get rejected and we filed an amend we are wondering how long it takes to be accepted
Thank you so much for your help! The only thing I am confused about is since I have not gotten my refund yet can they stop the process or will they let it go through and then fix whatever later if it needs to be fixed? I am due to get my refund around the 7th. Thanks again you have no idea how much this is helping not only me but I am sure many other parents!!!
@Crystal: form 1040X is what you’ll file to amend (or appeal) your return.
@ Crystal,
While it’s quite possible that your ex is lying–it’s also quite possible that she isn’t. Identity theft is rampant and unfortunately, people steal children’s social security numbers. I’ve done enough identity theft cases where I believe your ex.
Okay, maybe not hook, line, and sinker, –I always suspect the ex first, but seriously, it’s quite possible someone else claimed your child. I’d at least give her the benefit of the doubt for now.
Hey Krissy,
Remember you love your husband and that with good husbands sometimes comes baggage. Oh boy!
Okay, here goes. First thing to check is the divorce decree: what’s the date, does he have to pay child support to claim the child etc. Here’s more info on that: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Now, the second question is who has custody? Is it her? Then she gets the Head of Household and EIC, your husband only gets the exemption and the child tax credit. Make sure that he did his part right, and she should calm down. If he did his part wrong–have him fix it. If he did his part right and she’s upset over the exemption and child tax credit–she may be able to fight you (that’s why you read the court ordered exemption post)–but is it worth her while? See where you stand and figure what she’ll do from there. I suspect she’ll tell you in no uncertain terms–but see what she’s “entitled” to do. I wouldn’t do anything unless you know for certain you did something wrong–if you did, fix it.
Suzy,
After you get your refund, then you can file an amended return. You can claim your second son for EIC, not for the exemption because your ex gets that. You may go back and file amended returns for as far back as 2008.
In fairness, you ex may have claimed the exemption and the head of household and EIC–you could be sending his returns into a tizzy. If you have a decent relationship, you might want to talk to him first and give him fair warning. Or, at least let him know that you won’t be letting it happen any more.
An amended return is a form 1040X. Don’t file it until you’ve got your refund. Many of the online programs will let you do the 1040X as well.
My husband has shared legal custody of his three kids, The divorce decree says that the parents have equal authority and no parents rights are superior to the other and that they are to alternate claiming the three kids with him claiming two one year while she claims one and they are to alternate claiming the kids until they are of age . His ex wife is an accountant and did his taxes for him under her business license but never complied with the court order and took all the credits for herself since the divorce but telling him he did get them as per the agreement. I have done our taxes the past couple of years and just realized what has been going on and having his tax returns from 08 up till current he has not gotten anything any of the previous years.. Can he file back previous years for all the credits he should have gotten per the divorce agreement? The kids literally live with us half the year and we provide clothing and food and even though the divorce decree says that she is resposible for medical insurance, we pay to cover all the kids because it would cost her too much to do so, so we actually pay more out of pocket caring for the kids than she does as it is. (not that I am complaining) and she has done nothing but be a weasel. She used her business license at her accounting business to do his taxes and he trusted her and I filed last year only filing for Child Tax Credit becasue my husband was deplyed and at the time I didn’t know what the divorce papers say and this year he is stil deployed so I didn’t think we could claim them this year so how do we fix our returns so we actually get the credits we are entitled to per the agreement?
Hi Lela,
Okay, first I love your email address. There’s got to be a good story there. Anyway–you’re right you should claim both of your children. You can release the exemption to him–sign an 8332 form. It sounds like you two have a good relationship so you may want to do that. See the split exemption post for more information: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
Now, about amending your last year’s return. I would do it. There’s only one thing–if you didn’t claim your other child, and your ex wasn’t allowed to. Who did claim the child? I can’t picture an audit without someone claiming the child. Weird.
Anyway, I’d go ahead and file the amended return. Be prepared for the audit letter, don’t worry you’ll win–and watch around to see who gets upset–that’s going to be the guilty party.
Hi Enivelys,
Okay so your divorce was in 2008. If you decree gives him permission to claim your son and there are no conditions to it, well then he can and he doesn’t need any paperwork from you.
If he doesn’t have anything allowing him to claim your son–you can still allow him to claim the exemption and the child tax credit. You would sign a form 8332 to let him do that. Since you don’t have any income, it makes sense for you to allow him to claim your son, especially if he’s helping you out financially.
Your ex cannot claim head of household or EIC.