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?

[StephanieSuiter]

He has claimed them the last 3 years. He only sees them 13% of the time by choice. He gets all their stimulus money and won't help buy summer clothes but get behind on child supprt. i suppose I would see it differently IF he wouls follow court orders and spend his time with them as he is suppose to. I have them 87% of the time. But he remarried and decided he doesn't need to do weekday visitations and summer schedules.

[Opus 17]

---

@StephanieSuiter wrote:

He has claimed them the last 3 years. He only sees them 13% of the time by choice. He gets all their stimulus money and won't help buy summer clothes but get behind on child supprt. i suppose I would see it differently IF he wouls follow court orders and spend his time with them as he is suppose to. I have them 87% of the time. But he remarried and decided he doesn't need to do weekday visitations and summer schedules.

---

If you have a court order that would allow the other parent to claim the children for 2020, and you file an amended return to claim them as dependents for yourself, the IRS will accept it, but you may be considered in violation of your court order.  The other parent could complain to the court, and the court could take action against you including fining you, ordering you to amend your return and release the dependent, or reducing your child support.  You should not violate a court order without good legal advice from your own attorney.

To claim your children as dependents, you will need to prepare and file an amended return.  You can do this in Turbotax online, but the amending function is not turned on yet. (It should be ready next week.). Here is a link to instructions,

https://ttlc.intuit.com/community/amending/help/how-do-i-amend-my-return/01/27439

and a couple of helpful articles and videos

https://turbotax.intuit.com/tax-tips/amend-return/amending-your-income-tax-return/L4B7pN42I

https://turbotax.intuit.com/tax-tips/amend-return/video-how-to-amend-your-tax-return/L2wLEwRf1

https://turbotax.intuit.com/tax-tips/amend-return/how-to-file-an-amended-return-with-the-irs/L6kO691...

The process in your case will be to create the amended return, and add the 3 children as dependents.  Answer they lived with you more than half the year, and you do not have a custody agreement that will let the other parent claim them (since you are ignoring the agreement).  Turbotax should indicate you will receive some recovery rebate and other benefits adding up to a large additional refund.

You will need to print your amended return and file by mail.  An amended return is a form 1040-X that summarizes the changes, and a copy of any of the tax forms that have changes (your form 1040 with the dependents listed, and possibly other forms). Sign the 1040-X and the 1040, and mail them to the IRS.  Expect it will take 5-6 months to process, and any refund you claim will be paid by a check mailed to the address on the tax form.  The IRS does not do direct deposits of refunds from amended tax returns.

You don't need to send any proof of custody.  Just list your childrens' names and SSNs and any other information asked by the program.

If there is a conflict between your amended return and the other parent's return, the IRS should send a letter to both parents asking about the dependents.  That letter usually takes 6-9 months to show up, but the IRS is very backlogged this year.  If and when you do get a letter, you will respond with proof that the children lived with you, and any other information the letter requests. 

[samanthayoung320]

My ex claimed my daughter twice on years that were my years.  My attorney told me to file a paper return with my court order attached.  Worked both times.  

[lann1970]

I'm just wondering if this response is still current? I got divorced in 2008 and do have an 8332 on file and we have alternated each year since. Last year my daughter went to live with him and had child support terminated and we are now joint managing conservators but the document his attorney prepared made no mention of taxes or claiming her or I would have objected.  The 8332 was not nullified. I still pay some of her bills, see her regularly and maintain a house in her registered school zone where she wants to continue to attend. When I went to file, my return was rejected (to my shock) and he told me he thought it didn't matter to me. He basically took $2,000 with no warning. I feel I have good standing in filing a dispute as long as this information is still current. Thank you for all the information! 

[Opus 17]

@lann1970 

I don’t quite understand your question, “is this answer still correct?“

All of the rules regarding claiming a child as a dependent have been the same since 1986. The special rules that apply to children of divorced or separated parents are the same as they have been for many years.  They are all covered in IRS publication 501, and you can also review IRS publication 504 on divorce and separation.

https://www.irs.gov/pub/irs-pdf/p501.pdf
https://www.irs.gov/pub/irs-pdf/p504.pdf

The only parent who is automatically entitled to claim a child as a dependent is the parent where the child lives more than half the nights of the year. This is the custodial parent in tax terminology, and it does not necessarily have to agree with any court order.  The IRS only goes by where the child physically lives.

Form 8332 is used by the noncustodial parent to claim a child as a dependent.  If you were previously the custodial parent and you gave your ex a form 8332 regarding how and when your ex could claim the child as a dependent, that is irrelevant for any year in which your ex has actual physical custody more than half the year.  It is now your ex who has the exclusive right to claim your child as a dependent and you would require a form 8332 signed by your ex before you could claim the child as a dependent.

The IRS will go entirely on physical custody. If your ex had physical custody more than half the nights of the year and did not give you a signed form 8332, then you are not entitled to claim any tax benefits for the dependent under IRS regulations.  There’s no point in filing a complaint with the IRS.

If your ex’s actions violate the letter or spirit of your divorce order, you might be able to file a complaint with the Family Court, and the Family Court could make an adjustment to the situation, including but not limited to, requiring your ex to make financial restitution to you, or requiring your ex to provide you with form 8332, or otherwise modifying any child support or financial arrangements. However, you must go to the Family Court for relief, not the IRS.

[Johnnie78]

My situation is different. My spouse claimed 3 of my 6 my children without my knowing. Only one of them is his. He also falsely used a relative's address so I wouldn't find out he filed my children on his taxes.

[xmasbaby0]

@Johnnie78 When someone else ---who should not---claims your children and files first, you will not be able to e-file your own tax return because the children's Social Security numbers have already been put into the system.  When that happens, the only way for you to file and claim the children is to print, sign and mail your own tax return.   Then the IRS will process your return and you can get the child-related credits for claiming them.   Eventually, in about a year, both parties will receive letters from the IRS---so when you receive a letter be prepared to show the IRS that YOU are the one who could rightfully claim the children.   (The other person who should not have claimed them will face repayment of their refund and penalties).

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.

[Opus 17]

@Johnnie78 

you said “spouse.“ Is this your current spouse or an ex-spouse? Are you divorced, or just separated?  You also said the children are not “his.“ There are a couple of things you need to know.

In the case of stepchildren, a stepparent has the same legal right to claim a child as a dependent as a biological parent, and this relationship is maintained even after divorce. Under IRS regulations, once a stepparent, always a stepparent.  This means that the ability to claim a child as a dependent is based on the usual rules of residency and support, and is not eliminated by a divorce or separation. If you have a biological child, but that biological child lived more than half the year with their stepparent, the stepparent can claim them as a dependent, even if you are divorced.

Secondly, there are several tiebreaker rules that may apply in the case of parents who are separated but not yet divorced.  For example, if you lived together with the other parent for all of 2020, and separated or were divorced in the beginning of 2021, then both parents have the same right to claim the children as dependents because both parents lived with the children “more than half the year”.  In this case, the tiebreakers apply.

The first tiebreaker is which parent did the children live with the most number of nights.  For example, if you lived together in all of 2020 and separated in December, then you might have had custody 365 nights and the other parent had custody 335 nights. Although both parents have the right to claim the child as a dependent because both parents had custody more than half the year, if there is a disagreement, the tiebreaker will go to you for having the greater number of nights.

If the number of nights of custody is exactly equal, the second tiebreaker is taxable income.  For example, if you, the other parent, and the children all lived together for 2020, then you and the other parent have custody an equal number of nights. In that case, if you disagree on who may claim the child as a dependent, the tiebreaker goes to the parent with  the higher gross taxable income.

As stated before, if you can’t e-file because the other parent claimed a child that you believe you should claim, you will have to print your return and file by mail. Be prepared to send proof to the IRS of where the children lived the greater number of nights and be prepared to prove any of the other conditions required to claim a dependent. Carefully review IRS publications 501 and 504.  Don’t send proof with your tax return, but have it on hand for when the IRS begins their investigation in the future.

[GreenBay2022]

My Ex, claimed both our children on their taxes.  Our decree says that we each get one.  When I went to file, it rejected my efile.  I clear have documentation saying that each of us get one.  We have joint custody of our children.  What do I do now?!  My ex clearly told be they do not care what it says that they are going to claim both and since my ex did their taxes first now it rejected my e file.... 

[xmasbaby0]

Who do the children live with?   The person the children spent the most nights with (at least 183 nights) is considered to be the custodial parent as far as the IRS is concerned.   

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 18.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

That being said.....

Someone else claimed my dependent and my return was rejected
If someone else claimed your dependent already, then your e-filed return will be rejected. Print, sign and mail your own return which claims your dependent. Mailed returns are processed differently by the IRS. It will take some time (maybe even up to a year) but eventually the IRS will contact both parties and sort out who could rightfully claim the dependent. The person who wrongfully claimed the dependent will face repayment of refund $, plus penalties.

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.

[rapdevils]

Hello, I went through the same issue with my ex, unfortunately there’s nothing you can do when it comes to the IRS. However if it is in your divorce and child agreement you may still be able to take her to court. As the decree is a legal and court agreement if either one of you go against it you are breaking the court agreement which is a violation with the court and could lead to severe punishment if it continues. File with the court that your ex is in violation with the court agreement you have, the judge will then set forth his judgment and could possibly make it so you can claim both children one year and/or make it so if it happens again it will result in a felony. 

[Amber1108]

Ok so, the non custodial parent is not supposed to ever claim the child unless the divorce decree is pre 2009? Yet, this says to check that yes someone else is claiming them. I am so confused. My ex just claimed our son and now I have to paper file. I had an issue paper filing as year and my taxes were lost by them and I never have gotten it fixed. 

I would almost rather lose the credit for the dependent than risk this mess again, but I also don't want to commit fraud and allow my ex husband to commit fraud either. TurboTax has not been helpful.  Next year I will file with someone else, but I've already paid $117 to TurboTax and they should be helping me. 

[xmasbaby0]

@Amber1108 Did you read through this thread?   This was only a bit above your own post.

Who do the children live with?   The person the children spent the most nights with (at least 183 nights) is considered to be the custodial parent as far as the IRS is concerned.   

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 18.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

That being said.....

Someone else claimed my dependent and my return was rejected
If someone else claimed your dependent already, then your e-filed return will be rejected. Print, sign and mail your own return which claims your dependent. Mailed returns are processed differently by the IRS. It will take some time (maybe even up to a year) but eventually the IRS will contact both parties and sort out who could rightfully claim the dependent. The person who wrongfully claimed the dependent will face repayment of refund $, plus penalties.

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.

[Opus 17]

@Amber1108 

Turbotax has nothing to do with your problem. If your ex claimed your child as a dependent, then you will be blocked from e-filing no matter what provider you use.  You could upgrade to TurboTax Live online to have the support of a professional tax preparer, but if you have a completed tax return, there is nothing else they could do for you either. Your return must be mailed to the IRS and once the IRS has it, there is nothing that any tax professional can do to expedite your tax return.

A non-custodial parent can never claim the child legally without a signed form 8332, or a divorce order from before 2009. If you and your ex both claim your child, the IRS should eventually investigate, and if you can prove the child lived in your home more than half the nights of the year, your ex will have to re-pay any tax credits or benefits with interest and penalties. But that may take more than a year to happen.

The one option that might prevent this in the future would be to file an identity theft claim with the IRS using form 14039-T, or by opting in your child into the identity protection pin scheme at the IRS.  Once you and your child have identity protection pins, no one can e-file a tax return with your child‘s name on it without including the pin. The IP pin changes every year and a new one is mailed to you by the IRS in December. That would prevent your ex from claiming your child in the future because your ex would not have the IP pin.

https://www.irs.gov/identity-theft-fraud-scams/get-an-identity-protection-pin

[Amber1108]

I read through some of the other comments. 

Our divorce was in 2017. He has no financial responsibility for them and barely even has seen them in 2 years. (Of his own will) he has no right to claim them but he already has. 

If I mail them in and they get lost then what? I have to once again redo my state from last year because it was "lost" this is crap that he gets to e-file and mess mine up when he should have had to have a form 8882 or whatever and he doesn't have that form. So he gets to lie on his and it goes r ight on through, but I do everything and I do it correctly and now I have to either let him claim a child he has no right to claim and allow him to commit fraud or I have to risk mine being lost or wait a year to get a refund? This is just not right. Where is the protection for the good people? Isn't the point in using a tax service and paying to have their protection when things happen?