Tax Year Prior to 2020: My ex claimed our child, but our court order says I'm supposed to claim her. Can I e-file without claiming her and then mail an amendment once it's available?

[DoninGA]

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@Lia073185 wrote:

Can I refused to sign it?

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Yes, you can refuse to sign the form.  You will then be in Contempt of Court and the judge will decide your punishment.

[Opus 17]

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@Lia073185 wrote:

I already claimed my child as dependent. And the father already filed to ask judge to held me in contempt. In this situation can I be incarcerated :(

if held in contempt of court? 

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You need to ask your attorney.

Going only by what other parents have indicated on this forum, I do remember seeing a parent tell the story of how they were threatened with jail unless they signed the form and handed it over to the other parent in front of the judge at that minute.  I saw a story from another parent that the judge required them to sign a new form giving the other parent the right to claim the child in all future years, instead of just alternating years, as was originally ordered.  These are stories from other customers and I have no way to know if they are true.  

Your judge may be sympathetic if you have a very good reason why this small financial concession should not be made.  Your attorney will have handled other cases before the same judge and should have some idea of how the judge will react.  The child tax credit is $2000, and I expect your attorney will charge you at least $300-$500 per hour to fight this for you.  Is it really worth it?  Only you can decide. 

[Needingtaxhelp2021]

Does anyone know if you can turn a custodial parent into the IRS for fraud if they have refused to follow a state court order requiring the parents to rotate claiming the child on taxes? Mother has refused to follow court order, and has instead claimed child every year, refusing to allow father to claim the child on his years.  This has been going on for many years now. How would we go about doing anything about this through the IRS? We are filing contempt charges against the mother for this, but is there anything we can do through the IRS since the court order specifies years each parent is to claim child, and without any prerequisites to do so? 

[Opus 17]

@Needingtaxhelp2021 

The IRS doesn’t care about your custody order, won’t help you enforce it, and won’t get involved in any way.  The IRS follows federal law, which awards the dependent claim to the parent who has custody more than half the nights of the year unless the custodial parent gives the noncustodial parent a form 8332, or the noncustodial parent has a divorce order that was finalized before 2009 and that contains certain specific language—in which case they can claim the dependent by attaching a copy of the divorce order to their return.  

Assuming it is not a pre-2009 divorce, you have to go to your local court to enforce the order.

[StephanieSuiter]

So if I already E-filed, what tax paper do I need to file to claim my dependants since my ex-husband already claimed them without my signing a form? And how do I obtain it? Thank you for your help.

[xmasbaby0]

If someone else claimed your child incorrectly, you cannot e-file this year.  You print out your tax return form that claims your child, sign it in ink and mail it.   It is not a special form---you mail your Form 1040.

https://ttlc.intuit.com/community/printing/help/how-do-i-print-and-mail-my-return-in-turbotax-online...

When you mail a tax return, you need to attach any documents showing tax withheld, such as your W-2’s or any 1099’s.  Use a mailing service that will track it, such as UPS or certified mail so you will know the IRS/state received the return.

Federal and state returns must be in separate envelopes and they are mailed to different addresses.  Read the mailing instructions that print with your tax return carefully so you mail them to the right addresses.

[macuser_22]

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@StephanieSuiter wrote:

So if I already E-filed, what tax paper do I need to file to claim my dependants since my ex-husband already claimed them without my signing a form? And how do I obtain it? Thank you for your help.

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If the child(ren) physically lived with you more then half the year you do  not need ANYTHING other than a correct tax return.

If you or a dependent that you are entitled to claim has already been claimed by another taxpayer, your e-filed return will reject since the SSN has already been used (either intentionally or in error such as a mistyped SSN).

Your only recourse is to file a correct tax return, claiming what you are entitled to claim, then print and mail the return.

The IRS will process both returns and pay any refunds. Shortly (within a year) the IRS will mail letters to both taxpayers asking if their tax return was filed in error and suggesting that they amend if they improperly claimed.

If neither taxpayer amends, the IRS will send a second letter asking for each taxpayers proof that they are entitled to the claim.

The IRS will evaluate each taxpayers claim and award the credit to one taxpayer, the other will have to payback any refund received plus interest and possible penalties.

Do not ignore the letters or you will loose.

[StephanieSuiter]

I efiled my new son and didn't realize my I could claim my oldest 3. My ex-husband claims them every year bc I haven't been able to work due to health issues and having a new baby. But I have never signed papers for him to claim them and he only has them 13% of the time and takes all their stimulus money as well. Where do I go to file it online and send it to? It didn't reject it bc I wasn't aware I could claim them since he has been without my written/signed consent.

[xmasbaby0]

I do not understand whether you e-filed a return claiming your children or not.   You say "it didn't reject it.."... 

If YOU are the custodial parent then you are the one who can file a tax return and claim the children even if just for the stimulus money.  Enter your children as dependents on your tax return in My Info    You can get the stimulus money by using the recovery rebate credit in the Federal Review section.  Enter only the amount of stimulus (if any) that you received.

Since your ex has already filed a return, you will not be able to e-file.  That is why we are telling you to print, sign and mail your own return that claims your children.   If you do not have any signed agreement with the ex then YOU are the one who is supposed to receive the stimulus money for them.

[Opus 17]

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@StephanieSuiter wrote:

I efiled my new son and didn't realize my I could claim my oldest 3. My ex-husband claims them every year bc I haven't been able to work due to health issues and having a new baby. But I have never signed papers for him to claim them and he only has them 13% of the time and takes all their stimulus money as well. Where do I go to file it online and send it to? It didn't reject it bc I wasn't aware I could claim them since he has been without my written/signed consent.

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If you have a court order that orders you to allow your ex to claim some of your children, this is what you should be doing:

You list your children on your tax return, state the children lived with you more than half the year, and you are giving the other parent a form 8332 to allow them to claim the child as a dependent (for any children that are covered by the order).  The child will still allow you to qualify for EIC, head of household status, and the dependent care credit (if you meet the other qualifications) because those benefits can't be shared or transferred.

Your ex is supposed to say in their tax program that the child lived with them less than half the year and they are claiming the child because of a form 8332.  They will get the child or dependent tax credit but will not qualify for EIC or head of household.  They must mail the 8332 to the IRS after filing.  If you both do this correctly, the IRS will have no problems.  

If your ex does not ask for form 8332, the only way they can claim a dependent is if they lie and say the child lived with them.  This may cause them to claim extra tax benefits that are not allowed, and it will cause a conflict with your tax return that may cause one or both returns to be rejected and may trigger investigation letters from the IRS.

If you don't have a court order that requires you to allow the ex to claim the children as dependents, then the only parent who is automatically allowed to claim the children as dependents is the parent where the children live more than half the nights of the year.  If that is you, then you are entitled to file an amended return that lists all your children as dependents.  You would qualify for the $2000 child tax credit for each child, although the actual amount of credit payment will depend on your income earned from working.  For 2020 only, you will qualify for a stimulus rebate for each child, even though your ex may have received a stimulus payment earlier based on his 2019 return.

The amended return will likely take 6 months to process.  If your ex also claims the same children, the IRS will send letters to both of you to investigate, and you will want to respond with proof that the children live with you more than half the nights of the year.  But don't send proof with your amended return, wait until asked.

The amending function may not be turned on yet in Turbotax, it may be another couple of weeks before it is ready, since the just-passed Rescue Plan Act has new tax law changes that must be programmed in. 

All these rules are in IRS publication 501. https://www.irs.gov/forms-pubs/about-publication-501

[StephanieSuiter]

We have a divorce decree that says we alternate years if I have a job and even then I can only claim our youngest of the 3. However, he was also suppose to have them more and he stopped his weekday visits and doesn't follow summer schedule. So he has them 13% of the time and I have them 87% and he still claims all the benefits. So I was not sure how I could fix this because I did read the IRS doesn't recognize a divorve decree that is after Dec. 31 2008. Ours was finalized Aug. 29 2018. 

[StephanieSuiter]

So if I already filed and claimed my new son, and my exhusband already filed and claimed our older 3 without consent, do I amend it online or will it automatically flag us? I'm so confused...

[Opus 17]

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@StephanieSuiter wrote:

We have a divorce decree that says we alternate years if I have a job and even then I can only claim our youngest of the 3. However, he was also suppose to have them more and he stopped his weekday visits and doesn't follow summer schedule. So he has them 13% of the time and I have them 87% and he still claims all the benefits. So I was not sure how I could fix this because I did read the IRS doesn't recognize a divorve decree that is after Dec. 31 2008. Ours was finalized Aug. 29 2018. 

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If you have a court order that says you only claim the youngest child every other year, and the ex always claims the other 3 children, then the only way to change that is to go back to the family court in your state.  You can ignore the order and claim the children because they live with you more than half the year, and the IRS will follow your claim because they live with you more than half the year, but your ex could go back to the family court and make life very unpleasant for you.  I would not suggest violating a court order unless you have very good legal advice.

So if I already filed and claimed my new son, and my exhusband already filed and claimed our older 3 without consent, do I amend it online or will it automatically flag us? I'm so confused...

As I already explained, if the children live with you more than half the year, the correct way to file is to list the children in Turbotax, answer that they lived with you more than half the year (choose "7 months" or longer), and that you do have a custody agreement allowing the other parent to claim them.  You will still be able to use the children to qualify for EIC, if you are eligible, and the childcare credit, if you pay for childcare so you can work.  Turbotax will also tell you to print form 8332, sign it, and give it to the other parent.  (You can send by registered mail if you prefer.). Your children in this case would have the status that says something like "Non-dependent, use for EIC only".  

If your ex is claiming the children without form 8332, he can only do that by claiming that they lived with him.  This may allow him to claim benefits that he is not really eligible for (in other words, tax fraud).

I can't tell whether you will actually get any tax benefit if you file an amended return to add your other 3 children, that depends on your overall facts and circumstances.  If you file an amended return to list your other 3 children and it does not change your tax or refund, there's no reason to file except to get your ex in trouble, and you can't e-file an amended return that does not change your tax or refund.  I'm not sure it's worth the effort.  If you prepare an amended return and it does increase your refund, you can probably file it online.  Make sure to give your ex a signed form 8332 (and possibly a copy of publication 501 https://www.irs.gov/forms-pubs/about-publication-501) because they may need to file their own amended return.

If you amend and there is a conflict between your return and your ex's, the IRS will send letters to both of you asking you to prove that the children lived in your home more than half the nights of the year. 

[StephanieSuiter]

So since I already efiled to claim my 5 month old (not exhusbands child) and my exhusband claimed our 3 children without me signing a form, I realize it will reject an amendment if I try to do it efile way. So what form do I print and claim my oldest 3 by exhusband since I am custodial parent? I realize it has to be amended, and I will get a letter from the IRS. But I am not sure what form exactly to print out, fill out, and send in exactly. I have never had to do this.

[Opus 17]

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@StephanieSuiter wrote:

So since I already efiled to claim my 5 month old (not exhusbands child) and my exhusband claimed our 3 children without me signing a form, I realize it will reject an amendment if I try to do it efile way. So what form do I print and claim my oldest 3 by exhusband since I am custodial parent? I realize it has to be amended, and I will get a letter from the IRS. But I am not sure what form exactly to print out, fill out, and send in exactly. I have never had to do this.

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I need to clarify here.

Why do you want to claim your 3 oldest children as dependents, because it is your turn and you forgot?  Or because you want to claim them even though it is your ex-husband's "turn" but you don't think it is fair for him to claim them because of other circumstances?