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Can my partner's ex claim both children?

My partner's ex wife just informed him that she is claiming both of their children on her taxes. In the divorce decree it states that she can claim their daughter and he claims their son. She has not filed anything with the court requesting a modification to the decree, but she is saying he is $300 behind in his child support. CS is garnished automatically from his paycheck to avoid these situations, but we think there might have been a couple weeks he missed last summer when he changed jobs.

We're more than happy to pay her any arrears, but she said she's claiming their son anyway. I wish she had just told us he was behind. We both think child support is very important, and we don't want to short her on it.

Can she do this? I don't think she can legally, but I am wondering if any of you have had to deal with this from an ex-wife and how you handled it. Thanks in advance for any advice!

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Asked by Hepcat281 at 10:29 AM on Jan. 18, 2011 in Money & Work

Level 2 (6 Credits)
Answers (15)
  • He can still claim him. If they get audited, all he has to do is show them their divorce decree that's signed by the judge & he will be fine. It would help if he filed before she did though....that way she'll be the one to get audited if it happens.

    This happened to my friend last year, although she was never married to the rx & he tried to claim both their kids. She got it fixed, but it was not easy.

    Answer by samurai_chica at 10:35 AM on Jan. 18, 2011

  • File first, otherwise you will be in fault with the IRS if you file and claim him.

    Answer by scout_mom at 10:35 AM on Jan. 18, 2011

  • * ex not rx...

    Answer by samurai_chica at 10:35 AM on Jan. 18, 2011

  • She can't!! File your taxes with the son as a dependent. If she does file and claim them both, the IRS will contact you. All you need to do is supply a copy of the court order. (This happened to us a few years ago, my DH's ex got in HUGE trouble with the IRS.) You don't even need to talk to her about it, the IRS will fix it.

    Answer by Scuba at 10:35 AM on Jan. 18, 2011

  • If you file your taxes first then she cant.

    Answer by L0vingMy3Girls at 10:35 AM on Jan. 18, 2011

  • first file is of course best option
    but if it is court papers that she can not claim that child
    she is doing so against the law and IRS will not be pleased with her
    i would copy the court papers and inform her that she can not do this, bring up IRS and the law
    she would be stupid to do this
    if she has already filed, it will take longer to get the money that is coming for this child, but you will

    same situation with my ex partner, his ex wife tryed this, he went to file and she has claimed both children, she was informed with IRS that she had to redo her taxes (do not know if she was fined, but she did have to pay back the monry she got from claiming that child which was not hers to claim- i did take awhile)
    somepeople think they are above the law= i never understand this

    Answer by fiatpax at 10:38 AM on Jan. 18, 2011

  • I agree that she CAN file the taxes, but you can file yours and claim him too. If she has already filed they won't let you e-file, but you can still paper file. You will get a letter from the IRS that there was a duplicate dependent claim, but since you have the court order, all you would do is show them that and you would be fine.
    If he is behind on child support, it is likely that they will take it our of your refund, if you get one.

    Answer by missanc at 10:39 AM on Jan. 18, 2011

  • I'd consult a accountant. I assume that if she's filing incorrectly, she doesn't want any IRS trouble!

    as for the father being behind in the child support, he really needs to make sure it's all caught up. She shouldn't have to tell you.

    Answer by Anonymous at 10:40 AM on Jan. 18, 2011

  • My brother went through this. He has full custody of his kids.
    You need to discuss this with your tax prep-er. Or, you could just make a call to the IRS and talk to them.

    There IS something you can do about it, because that is called tax fraud.

    Answer by SpaceToast at 10:43 AM on Jan. 18, 2011

  • If the divorce decree says he can claim the son then he can do that. If she is claiming both then if she gets audit she can get in trouble with the IRS. You partner will be okay since it's in the court decree. The ex knows the rule she can take her changes.

    Answer by musicmom08 at 10:47 AM on Jan. 18, 2011

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