EIC

[Troy111]

How can my ex husband,claim our 3 children as dependents ,when he has no earned income,and hasn't worked in ten years?? Me in the other hand,has worked continuously. Thank you 

[xmasbaby0]

Who do the children live with?   Are you the custodial parent?  Do the children live with you?   Did your ex file a return claiming the children, and cause your e-file to be rejected?   If so, you have to file by mail to claim your children and then let the IRS sort it out.

You say only that your ex has not worked; you do not say if he had other income from other sources such as retirement, investments, etc. etc. and you have not told us where the kids lived.

[DoninGA]

Nothing can stop someone from filing a tax return falsely claiming someone as a dependent.

All you can do is file a correct tax return claiming your children as dependents.

The IRS will investigate after they receive two different return claiming the same dependents usually within a year after receiving the tax returns.  The loser of the investigation has to pay back any refund based on the dependents claimed plus penalties.

[MariaDG · Accepted solution]

Hello Troy111, thanks for participating in our event today. 

As others have said, it depends where the children lived and who supported them.  If you mean to say that the father has no resources/income with which to support the children, then you may possibly be

entitled to claim them.

In order to be claimed as a dependent, the child must live with you for more than half the year, and you must provide more than half of their support. As there are an odd number of days in the year, it is almost always true that the child lived with one parent for more than half the year.  If for some reason, the parents claim that the child spent exactly the same number of nights with each parent, then the tiebreaker rule states that the parent with the highest AGI (adjusted gross income) gets to claim the child. 

If someone else has already claimed your children, you won't be able to  E-file a return with them on it.  However, all is not lost.  You can file your return by mail claiming your dependents.  When the IRS processes it, they will send you a letter, and most likely the other parent as well, suggesting that one of you amend your return.  You can respond with your proof of why you are entitled to claim the children.  It may take a considerable amount of time to be resolved.  If the other parent won't amend, the IRS will conduct an investigation.  If you are correct that you are entitled to claim the children, then you will eventually get what is due to you.  

Remember that you can amend a return to claim a refund for up to 3 years from the date you filed the original return.  So you can still claim your children for prior years.  But be prepared for a lengthy process.  Also consider the possibility of a poor reaction if the ex is required to repay past tax refunds. 

There is no way to prevent your ex from filing for the children again, but if the IRS determines he did so fraudulently, he may face a penalty, which should discourage him from continuing to do so.  Hope this is helpful.  Best of luck!

[Troy111]

All three of our children attend university schools out of town full time. So,how can I still claim them?

[Troy111]

All three kids attend university out of town full time.He has a pension,and just turned 62

[MariaDG]

If the children are in full time university and under the age of 24 they can still be claimed as dependents.  If one of your homes is their main home, and they are away temporarily for school but return there on school holidays and during the summer, then they are considered to be living with that parent. Once they establish a living arrangement of their own and are no longer returning to either of your homes, they are no longer a qualifying child.  However, they may still be a qualifying relative dependent, which is less of a tax benefit, but still worthwhile, if you are still supporting them.  You will need to carefully consider their income and calculate support.  You must have provided more than 50% of your student's financial support, which includes expenditures for:

• Food
• Clothing
• Shelter
• Transportation
• Education
• Medical and dental care

There is no distinction between pension income and wages as far as providing support to qualify as a dependent. (It would not qualify for the earned income credit though) So again, it may come down to who is providing more than half of their support. 

[BetteC]

Hello Troy111,

I see you have a follow up question.  College is considered a temporary absence from their place of residency.  Where do they reside while not in school?

Pension is not considered earned income.  Income that is not earned  

I hope that helps Troy111 and thank you for joining us today.

[Troy111]

Our three children attend university full time,out of town