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Anon03
Returning Member

Advanced stimulus payments

My ex and i have joint custody of our children with me having slightly more-physical and custodial. Every year tax time is horrible. Whoever files first claims the kids so i never know. Any time i start a new job, i just claim 0 dependants because i dont want to owe in. He knows hes not supposed to claim the kids because i have majority custody but he does. I havent “reported” him because i was told it could take years to sort. With stimulus payments being deposited 6 months early, im wondering what will happen if he files first this coming year after i have gotten the payments?

7 Replies
xmasbaby0
Level 15

Advanced stimulus payments

Do you have a signed agreement --- or a signed Form 8332?  The IRS cares who has the children for the most nights.   If that is you then stop worrying about what you ex is doing and file your own correct tax return and claim your children.   If he files first and you cannot e-file then you can mail in your return; the IRS will process it and you will get the child-related credits that you qualify for.     It will not take "years"---but the IRS will sort out who could really claim them.   It could take up to a year and then you will both get letters.  Be prepared to show that the kids spent at least 183 nights with you.  

 

 

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.   (for 2020 the age limit was under 17---it changes to under 18 for 2021).

 

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.

 

If you are a non-married couple who live together then only one of you can claim the child(ren) and the one not claiming the child does not enter anything at all on their tax return about the child. 

 

We do not know if you would have to pay any  advance payments back.   There are some safe harbor rules that allow parents at certain income levels to keep the CTC money received even if they do not end up claiming them on a 2021 return.   The rules are complicated and seem to be updating frequently.....it is all so new and we are all trying to keep up.

 

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**
Anon03
Returning Member

Advanced stimulus payments

No we dont have any signed agreements. Last year i agreed to let him claim the kids and had to sign a form for it but any other year he claimed them without permission and i just didnt fight it. We were married for 10 years, been divorced for 5 years. I have 51% and he has 49% for pyshical and custodial both.

xmasbaby0
Level 15

Advanced stimulus payments

No matter what a divorce agreement says about the "percent" of custody----the IRS goes by the actual number of nights---so count them up.

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**
Anon03
Returning Member

Advanced stimulus payments

I understand what youre saying, but the IRS isnt going to go off just what i say when they ask me. We dont write down nights at each house. The kids go to his house on fridays and back to mine the next friday. The only “proof” there is between us is the paperwork from court for custody and child support stating the 51-49%.

xmasbaby0
Level 15

Advanced stimulus payments

The rules have been explained to you.   You and your ex are playing the game of whoever files first gets to claim the children.   You can continue to play that game with each other or you can both follow the rules.   If you had the children for more  nights and your ex goes ahead and files first anyway, then your remedy is to file your return claiming the children by mail instead of e-filing.   If the ex e-files first then your own e-file will be rejected, but a mailed return will be processed.   

 

Sadly, there are plenty of divorced or never-marred parents who play this game.   The one who files first gets to claim the kids unless you take some action to claim them if you had the kids for more nights.   

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**
shellyteeter
New Member

Advanced stimulus payments

Hi,

I have 100% custody and have my children 365 days a year. My ex claimed my kids without my permission so my e-file was rejected. I mailed in my 2020 and still not processed.

I haven't received one child tax credit payment nor my 2020 refund.

I called IRS and they said nothing they can do until 2020 tax processed. I could so use the child tax credit payments, but I don't know what I can do. They're supposed to go by 2019 taxes (which I claimed kids) but IRS site says "don't qualify" so unfair.

Any suggestions? 

xmasbaby0
Level 15

Advanced stimulus payments

@shellyteeter Sorry----you have to wait until the IRS processes your 2020 return----and since you had to mail it (thanks to your ex)   it will take longer for them to process it.   It is taking much longer than normal for the IRS to process mailed returns.   They will not send out the monthly child tax credit payments while you have a return still being processed.   So, sorry, but you have to wait.    If you do not get the monthly payments you will be able to claim it on your 2021 tax return.   

 

As for your ex claiming them----if you are the custodial parent then you will prevail and be able to claim them.  The IRS cares who has the kids for the most nights in the year.   Eventually they will send letters to both of you and you will be able to show that the kids lived with you.   If your ex received child-related credits or stimulus money fraudulently he will face repaying that money and paying penalties.

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**

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