Your Life

Your Life

Major life milestones often have a major tax impact. Changes in your marital status, having a baby or adopting a child can have significant impact on your taxes. This is the place to ask questions about dependents, real estate, and other various scenarios that play a significant role in what taxes you pay.

Posts: 1
Registered: ‎01-18-2017
Accepted Solution

ex husband still claiming son

I have a question regarding my divorce 5 years ago. I was given sole physical custody of both my children. My ex husband has not supported them in anyway since our divorce but he continues to claim one of them on his taxes every year. He always tell me that since he already claimed him that theres nothing I can do about it.  my question is what if anything can i do about this? If I claim both of my children on y taxes thhis year what will happen?

Trusted Council Member
Posts: 6,191
Registered: ‎02-23-2016

Re: ex husband still claiming son

Hi tjohnston89,


Welcome to the community.


I do have some good news for you in that there are things you can do.  There are also a few rules that apply here that we need to look at so that you know what to tell the IRS.


In a divorce situation the custodial parent (the parent with whom the depedent children lived for the greater number of nights during the year) is the only parent who may claim the kids.


There are two exceptions.


If your divorce agreement was finalized between 1985 and 2009 and your ex-husband was allowed to claim one of the kids' exemptions per the divorce agreement then he can attach certain pages of the divorce agreement to his tax return and do so.


If the divorce agreement was finalized after 2009 (you said yours was five years ago which would have been either 2010 or 2011) then the divorce agreement doesn't matter.  The only way your ex-husband can legally claim your kids is if you provided him with a signed copy of Form 8332 which releases the kids' exemptions and the child tax credit to him.


So what you'll need to do here is file your 2016 tax return with both kids claimed as your dependents.  E-file as early as you can, but if you can't e-file mail your tax return to the IRS along with a statement explaining the situation attached.  Also, mail Form 3949-A (Information Referral) to the IRS at the address on the form to report the fraudulent activity by your ex-husband.  As a result of these two actions the IRS will investigate and although it will take a little bit longer to process your return than you're used to you should be able to claim both kids.


Make sure that you inform the IRS of the previous years' false claims as well.  You can still amend 2013, 2014, and 2015 for an additional refund if you're able to get those returns straightened out.


What you'll want to tell the IRS in your statement as well as on Form 3949-A is that your ex-husband is not the custodial parent, the kids did not live with him for the greater number of nights during the year, your divorce was finalized after 2009, and you have not signed Form 8332 and given it to him, and therefore he has no right to claim your kids.


In addition, you should call the IRS' identity protection division at 1-800-908-4490 and request identity protection PIN numbers for both of your kids.  This way nobody will be able to claim without their IP PIN numbers.  Identity protection PIN numbers change every year, so once you file your tax return with them it won't matter if something happens to them.  You'll get a new PIN for each child by mail within the first couple of weeks of the year.  Make sure that you keep the letter containing your PIN numbers somplace safe each year until your return is filed because the IRS only sends IP PIN letters out once.


I do hope that I've been able to help you out and I'll be here if you have any other questions.



Senior Tax Advisor (Tampa, FL)

Associate (Council Member)
Posts: 508
Registered: ‎01-31-2014

Re: ex husband still claiming son



I totally agree with Louis and his answer.  I will also say this is the most complete answer to your situation I believe anyone

could have ever given you!


Great answer Louis!