@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.
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.
