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What to Do when Your Ex-spouse Claims Your Child on Tax Return

Your ex-spouse claiming your child on tax returns can result in several legal problems. The Internal Revenue Service (IRS) does not permit dependents to be claimed partially by more than one person. A computer system is used by the IRS for the screening of social security numbers to avoid duplicate dependent claims. If such is found in their system, the IRS will send an audit letter to the second tax return filed using the Social Security number of the same dependent in the first tax return.

Who should claim the children?

A special rule is provided for children of separated or divorced parents in the Internal Revenue Code 152 (e). It is stated in the law that the parent who has custody over the child has the right to claim the exemption provided the following has been satisfied:

  • The parents have lived separately for at least six (6) months out of a year;
  • The parents have jointly provided for more than half  of the child’s support; and
  • The child has lived for more than half the year with one or both parents.

The custodial parent can be determined either by physical custody or by examination of court documents submitted. Physical custody is when a parent has custody over the child for the most number of nights every year. If the number of nights is equal, the parent with the greater adjusted gross income will be considered. The noncustodial parent may only have the right to exemption if the custodial parent releases a right to claim. The latter must complete the “Release Revocation of Release of Claim to Exemption of Child by Custodial Parent” (Form 8832). This must be attached to the tax return of the noncustodial parent in order to claim the dependency exemption.

Alternative arrangements

There are situations where the parents may alternately claim a child on their tax return. If there is more than one dependent, each of the parents may claim a child. If the parents decide to alternately claim, the custodial parent must submit Form 8832 as a waiver to claim dependency. In a divorce decree, the differences in income of the parents will be considered. The court may grant the noncustodial parent the right to claim. 

How to Deal With an Ex-Spouse Who is Wrongfully Claiming Your Child

Amicable Discussions

If both spouses have a good relationship even after the divorce, then seeking amicable solutions is the best option to preserve the good relationship between parents and the child involved. Maybe it was really an honest mistake on the part of your ex-spouse. If so, inform them of their mistake and come up with an agreement on how to solve the problem, like asking your ex-spouse to send a corrected tax return to IRS. However, if domestic abuse is involved, seeking legal advice would be the best option.

Take Action

If your ex-spouse is not willing or not able to correct their mistake, then it is up to you to fix the problem. This can be done by being communicative and open with the IRS about the situation you are in. If an IRS warning letter has been sent to you, send it back with pieces of evidence that let them know that you are the proper custodial parent who has the right to claim the dependency exemption. IRS Form 886-H-DEP has a list of the supporting documents that you can submit to them and the details on their submission.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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