Question

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?

Forum|Forum|6 years ago
June 7, 2019
20 replies
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Hal_Al

Employee

Yes, you can do that but you don't want to.

There are several things you need to be aware of:

1. The IRS doesn't care about your court order, unless it is dated before 2009. The IRS goes by it's own rules and will award the dependency to the custodial parent, if both parents try to claim the child. Your only remedy against the ex is to take her/him back to court for sanctions

2. If you are the custodial parent and If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.

Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest. The custodial parent almost always wins. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.

https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030

3. The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree. (without conditions - usually the payment of child support). Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf.

For tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. In the rare case (could probably only happen in a leap year like 2016), where the time that each parent has the child is exactly equal, then the parent with the higher income (AGI) is the custodial parent, for the purpose of determining who has first priority on claiming the child as a dependent.

4.There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) the following info may be of use:

There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him.

Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"

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topooz

If I am reading this correctly, If somebody got divorced in 2012 and in the divorce degree states the non-custodial parent gets to claim SOME of the kids on his taxes. He still can not claim the kids unless the custodial parent signs form 8332?

D

DexterS

Employee

Yes, you could do it that way.

Or, you could paper file and claim her now.

You will not be able to efile with her on the return because the return will be rejected since your Ex has already claimed her.

Be prepared to supply documentation of your right to claim your daughter when the IRS asks for it.

H

hayleeecampbell

What would be an example of documentation to claim a child when the IRS asks for it?

M

Moo92

If my court paper work stated I am to claim child as dependent and my ex did, will court documents be approved if the form 8332 was not filled out by me. ?

W

WillK

Employee

Yes you can do that if you need to. You can file your federal and/or state tax returns without claiming your dependent and then file an amended return claiming her once the amended returns are available.

You should not try to amend your return until the original return it has been fully processed and you have received your refund or your payment has cleared.
Amended returns do not “catch up” to your original return and replace them; they are processed as two separate returns.

Amended returns have to be printed and filed by mail. It can take the IRS up to 12 weeks or longer to process them. If you are due a larger refund than on your original return, your amended return should only show the difference and you will receive a separate check for it. If you owe money on your amended return, it will show only the new amount owed, you will have to mail a check with the return.

You can check the status of your amended return by clicking here: https://www.irs.gov/filing/individuals/amended-returns-form-1040-x-/wheres-my-amended-return-1

Click here for amending instructions: https://ttlc.intuit.com/replies/3288565

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A

Alwhitley22

So you are saying the IRS will still issue my refund at the normal time if my ex claimed our child without consent and I had to file mine through the mail?

K

KarenM90

If you file your return via mail it could take 6 weeks or more for the IRS to process your return. This is from the IRS Where's My Refund Site:

The IRS issues most refunds in less than 21 days, although some require additional time. You should only call if it has been:

21 days or more since you e-filed
6 weeks or more since you mailed your return, or when
"Where's My Refund" tells you to contact the IRS

Here is a link to the Where's my Refund Page: Where's my Refund

It can take 8 weeks for more for IRS to process Amended Returns.

Here is a link to the Amended Return Status Page on IRS.gov: Where's my Amended Return?

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J

Jrherm5115

My situation is slightly different, but I'm having the same fallout.

I am a stepparent to 2 children who spent 9 months of 2019 living with their father and myself (we are married). They had limited visitation with their mother in that time (no overnights). She regained 50/50 custody in Oct 2019 and then took full custody in November 2019. She has claimed them both on her taxes, my claim for them was rejected on e-file.

I file married filing separate due to my husband being a disabled veteran who gets VA benefits and they are not taxable.

By IRS rules it seems the children should be mine to claim for 2019. Am I correct and how do I appeal?

Thanks for any help.

A

Alwhitley22

If the children lived with you more than 6 months during that year then you are the entitled parent to claim them. You would just have to file through the mail claiming them and then a red flag will show up to the IRS that they were claimed twice and then they would send a letter out requesting the proof that the children lived with you for part of that year. Then the winner gets the money and the other parent has to pay back the irs. That is what I was told by the IRS when my ex husband claimed our daughter on his taxes without consent cause she lives with me full time.

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djpallet

I have a correlating question to that. my husband has it in custody order that he claims my stepdaughter while my stepson gets claimed by his ex wife. been this way for over 6 years. she withheld my stepdaughter from us breaking custody order June of 2019. We file that child every year. we do have 50/50 and we covered all expenses while in court procedings. We do have 50/50 custody. one takes one child and the other takes the other child. always been that way. So now, she decided to claim the child she is withholding from us while claiming the other child. No granted also, we had my stepson more days than her. We both filed my stepdaughter because we always do and nothing changed. what should we expect . Im assuming this will be on her?

R

rapdevils

I’m on a similar boat but just a bit different, in my divorce and custody papers it states that my ex and myself will claim one child each every year (2 children total) and she had gone to claim both. Is this a punishable act by the IRS OR Family Court if I were to take it there?

KathrynG3

Yes. The IRS will only grant one dependent deduction per social security number. I defer to the advice of your divorce attorney for your recourse in Family Court.

If your ex would agree to amending her filed return immediately and only claiming one child, she will save herself penalties and interest and lengthy correspondence with the IRS.

You, in the mean time, can properly file your tax return by mail claiming one child as agreed. The filing will take about 16 weeks for the IRS to process. It would be useful to get Form 8332 signed for the noncustodial parent from the custodial parent.

To find this form in TurboTax, follow these steps:

From the left menu, select Federal>
Other Tax Situations (third tab across the top)
Scroll down to All Uncommon situations and find Other Tax Forms and click Show more
Find Revocation of release of claim to exemption for child of divorced or separated parents and click Start to begin the process

P

Patrick091975

I was in court earlier this week. My ex-wife is supposed to allow me to claim 2 of our 3 sons per our 2012 court order. I had to get my attorney involved as we are still waiting (waiting since 1/31/20 as Jan 31 is the deadline on our court order for her to sign the form). She did sign for 1 son in June 2020, but refuses on the other. We have another court date in late August now because she was a no-show to our court date earlier this week but what penalties can be brought against her? She did claim the other son on her taxes for 2019. I am asking for attorney's fees too for defiance. We have been divorced since 2012 and this is the 2nd year she has been resistant in signing the IRS form (she lost in court last year but this was resolved before April 15 in 2018). Also, I noticed she did not claim any maintenance (over $25k) on her 2019 taxes either. Thank you in advance.

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Empires2build

You can file a contempt of court on them though. That is what my husband and I did. The divorce said he could claim one child and she continued to claim her after a second amended decree and SHE STILL continued to claim her. We are waiting to see what they are going to do because we had to mail another return in when they got electronically rejected. We mailed a copy of the decree that was ordered in 2015. Nevertheless it's a contempt charge

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Empires2build

Yes you can but why? Mailing a return would be just as efficient and time I believe. I have overnighted my mail in filing before. It's pretty quick

B

Bigtonyd

My question is this. My ex-wife and I got divorced back in 2004. In our custody agreement it says that we alternate years to claim my daughter on our taxes. For tax year 2019, my daughter turned 18. My ex-wife went and claimed her on her taxes, even though it was my year to claim her. She said because my daughters over 18, and she is the custodial parent. That she gets to claim her. And then our agreement ended when she turned 18. any truth to this? What is my recourse?

Hal_Al

Employee

@Bigtonyd

That's not a tax question; it's a legal question. There's nothing in the tax code that addressees your question. It's an interpretation of the wording in the document.

But, be advised that the issue of emancipation enters the picture when the child reaches emancipation age for her state. An emancipated person is not longer in anybody's "custody". But, the mother can continue to claim the child as a qualifying child, for tax purposes, because the child still resides with her. But, the father not only needs the mother's permission (just verbal), he needs to meet the dependent support and income test, as well.

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Empires2build

You can but its easier to claim her and send a copy of your court order with your filing and mail it in. If your in a hurry, I've even overnighterd mine before. Its the same time as e file, I believe