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?

@THOR02 

A child can be the “qualifying child” dependent of any close relative in the household*. If you live with your mom, it may be better if she claims your child.  The smart thing to do is prepare returns both ways and see which way the family comes out best. This tool may be useful:  https://turbotax.intuit.com/tax-tools/calculators/taxcaster/?s=1

If it is decided that you will claim the child, you can no longer e-file and will have to send in a paper return. Your mom will have to file an amended return, but you do not have to wait for her to do so. 

If you can't agree, on who will claim the child, then you, as the parent, have the higher right to claim the child.

The previous answer, in this thread is repeated here:

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.

*If the parents of a child can claim the child as a qualifying child but no parent so claims the child, no one else can claim the child as a qualifying child unless that person's adjusted gross income (AGI) is higher than the highest AGI of any of the child's parents who can claim the child.

Yes, if the court order says he is to claim your son and you do instead, you could be held in contempt of court, pay double damages, owe the IRS and money you received for claiming him including penalties and interest and a judge cpuld take away your right to claim the child indefinitely or at least for the next year you're entitled to. This isnt a tax issue, it's a legal issu. You cant violate a court order. If there's no visitation or contact whatsoever you can file for a modification to the current support order so that you can claim him every year until the father wants to be more involved. 

The irs doesn’t care about a court order. They go by who the child has lived with the most for that year and whichever parent the child has spent with the most that’s the parent who has the right to claim the child. 

@Needingtaxhelp2021 

The IRS doesn’t care about your custody order, won’t help you enforce it, and won’t get involved in any way.  The IRS follows federal law, which awards the dependent claim to the parent who has custody more than half the nights of the year unless the custodial parent gives the noncustodial parent a form 8332, or the noncustodial parent has a divorce order that was finalized before 2009 and that contains certain specific language—in which case they can claim the dependent by attaching a copy of the divorce order to their return.  

Assuming it is not a pre-2009 divorce, you have to go to your local court to enforce the order.

If someone else claimed your child incorrectly, you cannot e-file this year.  You print out your tax return form that claims your child, sign it in ink and mail it.   It is not a special form---you mail your Form 1040.

https://ttlc.intuit.com/community/printing/help/how-do-i-print-and-mail-my-return-in-turbotax-online/00/26258

When you mail a tax return, you need to attach any documents showing tax withheld, such as your W-2’s or any 1099’s.  Use a mailing service that will track it, such as UPS or certified mail so you will know the IRS/state received the return.

Federal and state returns must be in separate envelopes and they are mailed to different addresses.  Read the mailing instructions that print with your tax return carefully so you mail them to the right addresses.

@Johnnie78 When someone else ---who should not---claims your children and files first, you will not be able to e-file your own tax return because the children's Social Security numbers have already been put into the system.  When that happens, the only way for you to file and claim the children is to print, sign and mail your own tax return.   Then the IRS will process your return and you can get the child-related credits for claiming them.   Eventually, in about a year, both parties will receive letters from the IRS---so when you receive a letter be prepared to show the IRS that YOU are the one who could rightfully claim the children.   (The other person who should not have claimed them will face repayment of their refund and penalties).

When you mail a tax return, you need to attach any documents showing tax withheld, such as your W-2’s or any 1099’s.  Use a mailing service that will track it, such as UPS or certified mail so you will know the IRS/state received the return.

Federal and state returns must be in separate envelopes and they are mailed to different addresses.  Read the mailing instructions that print with your tax return carefully so you mail them to the right addresses.

Who do the children live with?   The person the children spent the most nights with (at least 183 nights) is considered to be the custodial parent as far as the IRS is concerned.   

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.

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.

That being said.....

Someone else claimed my dependent and my return was rejected
If someone else claimed your dependent already, then your e-filed return will be rejected. Print, sign and mail your own return which claims your dependent. Mailed returns are processed differently by the IRS. It will take some time (maybe even up to a year) but eventually the IRS will contact both parties and sort out who could rightfully claim the dependent. The person who wrongfully claimed the dependent will face repayment of refund $, plus penalties.

When you mail a tax return, you need to attach any documents showing tax withheld, such as your W-2’s or any 1099’s. Use a mailing service that will track it, such as UPS or certified mail so you will know the IRS/state received the return.

I do not know for sure, but I believe you only have 2 years to amend for a situation like that. I would definitely look into it further. The laws have changed quite a bit and I really barely know how to even file anymore. They have over complicated everything.

I do know someone had a similar situation and she ran out of time to amend waiting for an answer. Worth a shot. 

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@steelcyc wrote:

my situation is a very odd one my ex dont work we r still married she had a bunch of false legal crap hemming me up that was lies and took my kids shes 4hrs away my point is is she doesnt work and my support provdes like 100% of the household support she dont work but i think that she let her brother claim them but she lives on her own so if i was payin spousal and child support which is half my checks shouldnt i be able to claim them

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If you are still married, you have the option of filing as married filing jointly, in which case you claim the children on the joint return since at least one of you lived with the children.  However, I don't recommend that if your spouse has legal or financial trouble.  You will best protect yourself from those troubles if you file as married filing separately. 

If you did not share a home with the children for at least 183 nights of 2021, you can't claim them as dependents, even if you pay child support.

If your spouse lives with her sibling and the children share the same home, the sibling can claim the children as dependents if his income is more than your spouse's income.  If they do not share a home, then the brother may not claim the children as dependents unless he pays more than half their total financial support.  Your child support payments might or might not make this impossible, but it depends on the total facts and circumstances.  

There is a way to report suspected tax fraud.   But if the children did not live with you, it will be impossible for you to get any benefit from your complaint.  You won't be allowed to claim the children, even if the brother is audited and denied.  So a complaint could only benefit you in the sense that you punish someone else you don't like.  Here is a link.

https://www.irs.gov/individuals/how-do-you-report-suspected-tax-fraud-activity 

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@W_Wolf wrote:

My wife and I are in an interim custody agreement, but she left during the second half of the year. I claimed before she did because she was not open for negotiation even though I felt was fair considering I had the higher income for the year. Is this going to be tricky to amend or is there a clear wrong answer? 

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You say your wife left during the second half of the year.  I assume there were kids and she took them with her.

For 2022, both you and your wife qualify to claim the children as dependents, because the children lived with you more than half the year (in the same home). If you agree, either one of you can claim the children and if there are more than one, you can split them any way you like.  If you can't agree, the first tiebreaker is where did the children live the greater number of nights.  For example, if your wife left Sept 1 and you had the kids every other weekend after that, then you had custody for about 250 nights but your wife had custody about 320 nights.

If the number of nights that you each had custody turns out to be exactly equal, then the second tiebreaker is whose income is higher.

If you have more than one child together, maybe you split them this year.  But if your wife is demanding that she claims the child or all the children, and if she had custody more nights than you, then she would win if there was an IRS investigation.  It might be simpler at this point to amend your return, remove the children, and pay back any credits.  Amending is fairly easy, just don't file your amended return until your original return is processed and any refund paid.  There will be no interest or penalties for having to repay part of your refund as long as you file the amended return by April 18.