I am non-custodial parent who pays full child support while custodial parent does not work and on welfare. Can I claim my children on my tax return?

[orland0528]

For the last 14 years, custodial parent always allowed others to claim our children on their tax return to gain a monetary benefit from it since she never works and live off my child support and welfare. Well, enough is enough and if she is not claiming them, am I eligible or at least has the right to claim them on my tax return since I am the only one who financially support them 100% of their lifetime.

[Opus 17 · Accepted solution]

There are two kinds of dependents, qualifying child and qualifying relative.  You can't claim the child as a qualifying child dependent.   If you don't have custody more than half the nights of the year, you can't claim your child unless the custodial parent gives you a signed form 8332 releasing the dependent exemption to you.  Sometimes, courts will order that the custodial parent sign the form as part of the financial arrangement between parents sharing custody.  But without that form you have no ability or right to claim the child as a qualifying child dependent.

Now, qualifying relative gets tricky in your situation.  You can claim your child as a qualifying relative dependent even if you don't live with the child, if all of the following are true:

1. The child earns less than $4050 in their own name.

2. You pay more than half the child's total support.

3. No other taxpayer can claim the child as a qualifying child dependent.

Your ex has the first right to claim the child as a qualifying child dependent, and she is a taxpayer if she has more than $10,350 of taxable income, or if she has less income and files a tax return to claim the dependent, EIC, or any other deductions and credits.

Now, you say she lets "others" claim the child as a dependent.  If those "others" are a close relative (like a parent/grandparent or sister/aunt) who lives in the same home as the child for at least half the year, then that relative can also claim the child as a qualifying child dependent.  But if the "other" is a boyfriend and they are not married, then the boyfriend can only claim the child as a qualifying relative dependent, not a qualifying child dependent.  And the boyfriend can only use qualifying relative if the boyfriend pays more than half the child's expenses.  If the "others" are non-relatives, they can't claim the child under any circumstances unless they live with the child for the entire year and also pay more than half the child's expenses.

So, what you can do is claim the child as a qualifying relative dependent.  This will get you the dependent exemption and the child tax credit but does not qualify you for head of household or EIC, because the child would have to live with you more than half the year to claim those things.  In turbotax, answer the dependent questions honestly (child does not live with you, no one else can claim, you pay more than half the expense, etc.) and it should work.

If someone else has already filed and claimed the child, you will be blocked from e-filing, but you can print your return and mail it in, and the IRS will eventually investigate the duplicate dependent claim.  You will need proof of your argument that no other taxpayer can claim the child as a qualifying child, and that you pay more than half their expense and are allowed to claim the child as a qualifying relative.  How easy or hard it will be to make your case depends on exactly who your ex has been allowing to claim the child and what their relationship to the child is.

If you believe these same facts apply to your situation for 2013, 2014 and 2015, you can file amended returns to claim the dependent for those years as well.  Amended returns take 5-6 months to process and will trigger the same investigation of the child's dependent status, so you will need strong proofs of your facts for each year.  Again, the proof will depend on who else claimed your child.  If your ex earned even $100 and filed a tax return to claim $10 of EIC, that makes her a taxpayer and you are disqualified from using the qualifying relative claim. But if the person who claimed the child is not allowed, then that person should (in theory) lose the dependent exemption and have to pay back part of their tax refund with interest and penalties.

Read this very carefully before you take action IRS publication 501. https://www.irs.gov/uac/About-Publication-501

[Opus 17]

You could also potentially go to family court and get an order that your ex give you a form 8332 on the grounds that you are paying support and she has been breaking the law by allowing "others" to claim the child (if indeed she has been breaking the law).  You could also potentially file an IRS whistleblower complaint against the "others" if you know who they are and are sure they don't qualify under the qualifying child or qualifying relative rules.

[orland0528]

Thank you for the fast response. I believe I know what steps to take now and as long as I am doing it the proper way as listed above, I am not breaking the law. The only concern I have is the long wait I would have to deal with after providing supporting documents while being audited since the custodial parent wont sign the form 8332 and she already allowed others to claim the children.
When I mention about the "others" already claiming the kids, "others' are referred to: An individual who pays the custodial parent/or guardian an average of $700 per child to claim the child as dependent on taxes. There may or may not be related in any type.
Again, thank you for the comments and I need to make this official in court as well.

[Opus 17]

If she's just selling the dependents that's highly illegal.  You can claim the children for 2016 and you will get your refund right away, then it takes a year or more for the IRS to investigate.  Amending prior years will take longer of course.  There may be a more effective way to blow the whistle on her but I don't know if that would end up interfering with your claims.  You might want to consult an enrolled agent -- accountant who specializes in IRS matters.  Good luck.

[smoov38tt]

I have a similar question:  I (non custodial) have been claiming my 2 children since the '12 tax year but I always list the other parent as a person who can also claim them. I live in Ohio. I am perhaps trying to gain info on what I need to do to get this resolved. Now the mother (custodial) is trying to say I have no rights because she didn't put my name on Birth Certificate now that she has a husband that works part time and she doesn't work. Is there anything you can advise me of. She  also filled out an 8332 form for '15 taxes for me I didn't attach to '16 taxes. I also have the kids tuesday after school,fridays after school, saturdays and sundays until 830pm. All holidays and breaks. Any help appreciated

[Opus 17]

There isn't really any "help".  If you are the non-custodial parent, and the custodial parent is a taxpayer (either singly or jointly with a new spouse) then you can't claim the children as dependents unless the custodial parent gives you a signed form 8332.  And if you did get an 8332 form for 2015, it wouldn't be valid in 2016 unless it specified a range of years -- normally they are good for one year at a time.

If you are obliged to pay child support, the dependent issue is something you would have to take up with the family court.  The court can order the other parent to sign the form or face contempt charges, or the court could reduce your support obligation in lieu of sharing the dependents from year to year.

[smoov38tt]

8332 all future years, also it's sent me letter to claim eitc, which I never do as she usually works. But she doesn't work so I didn't attach when I filed.

[Opus 17]

You can never claim EIC as the non-custodial parent.  And if the ex-spouse or a court says you can, that's invalid since a state court can't override federal law.

The dependent splitting rules for children of divorced or separated parents are in publication 501 <a rel="nofollow" target="_blank" href="https://www.irs.gov/uac/about-publication-501">https://www.irs.gov/uac/about-publication-501</a>

In brief, the custodial parent automatically gets all tax benefits of a dependent,
1. exemption
2. child tax credit
3. qualify for head of household
4. earned income credit
5. child and dependent care credit or dependent care FSA

The non-custodial parent can claim the children as dependents if the custodial parent gives the non-custodial parent a signed form 8332, or if there is a divorce decree from 2008 or earlier that has certain narrow and specific qualifying language.

Even if the non-custodial parent can claim the child as a dependent, they can only get the exemption and the child tax credit (#1 and #2).  The other benefits always stay with the custodial parent and can't be waived or transferred.

In Turbotax, if you answer the dependent interview by saying that you had custody less than half the year, and are claiming the exemptions because of a form 8332, Turbotax will only give you #1 and #2 and will not allow you to claim the other benefits incorrectly.  However, if you tell Turbotax you had custody more than half the year, the program won't know any better and you will get those other benefits, and you may end up being investigated by the IRS and required to repay some of those tax benefits.

If you have a form 8332 signed for "all future years" then you should have no problem claiming your children as dependents as long as you indicate in the program that you have custody less than half the year, so that you only take #1 and #2.  Your ex and her new spouse can claim the children for EIC, but if they try to claim the children as full dependents, both of you will get letters as part of an IRS investigation.  You would show proof by giving the IRS a copy of form 8332 -- which you are required to mail with your tax return anyway.

If you are being blocked from e-filing because your ex has already filed, and you believe you have a legitimate claim, print your return and mail it in.

Also be aware, your ex can TAKE BACK the dependent waiver (cancel the "all future years" choice) by giving you another signed form 8332 using part 3 of the form to indicate that she is taking back the exemptions.  However, this does not take effect until the tax year AFTER the calendar year in which she gives you the new form.  In other words, if she gives you a new form 8332 any time in 2017, you can still claim the children as dependents in 2017 but not in 2018 or after.

[smoov38tt]

I filed first indicating 192 days of custody as I do yearly, I never get eitc any year, IRS sends paperwork saying I an eligible to claim it. Now her faux husband (never turned in marriage license) is saying I frauded.

[Opus 17]

Custody is where the children sleep overnight (with some exceptions considered if one of the parents works nights).  So having the children "saturdays and sundays until 830pm" will not count as custody for tax purposes, and "tuesday after school, fridays after school" only counts if they stay overnight.

It doesn't really matter what the new spouse says, just what the IRS says.  If your ex files a tax return claiming the children as dependents, the IRS will eventually send letters to both parents to start an investigation.  You will need to decide what your position accurately is (it sounds like you can't claim to be the custodial parent) and then prove your position by mailing proof to the IRS.  Proof might be:
•The form 8332
•copies of letters from school showing that the bus drops them off tuesday and picks them up wednesday morning to prove overnight custody
•letters from the school, doctors, or other service providers showing that the children get mail at your address.

I would politely ignore anything the ex or new spouse says, and wait to see if the IRS starts an investigation.

[toniabraham]

So, if I am the non-custodial parent (who works full time and pays child support) but the custodial parent is NOT a taxpayer (as they already tried to file taxes but could not since they did not work or pay taxes) can I legally claim my children without the form?