[A]s we approach the last 30 days before taxes are due, I thought it would be appropriate to talk a little bit about who is suppose to claim your children after a divorce. The short answers are: 1) the parent whom is deemed on your final court orders, and 2) the parent who is the primary custodian or has the children the most and is responsible for their primary care.

Who Gets to Claim Johnny on Taxes?

Sounds simple right? For starters, I have seen very few final orders address who is allowed to claim the children and second I have seen some orders that really are split time “one week with dad, one week with mom.” So what does the IRS think?

[tweet “The IRS assume that the first person who claims the kids is suppose too.”]

The second parent filer, if claiming, is left with the burden of proof. Like all good and honest citizens, the IRS’ position is we blended parents know what we are doing and get along peacefully. All things being equal, the parent who has the kids the most and usually receives child support is the one who should claim them on their taxes. So claiming parents you need to file first and have your documentation ready.

What Do You Do If the Ex Claims the Kids

So what do you do if you find yourself filing and the non-custodial parent has claimed the children anyway? It happens to me every year, so here is the procedure. You need to attach a letter to your taxes along with proof that you are the custodial parent. By the way, proof is usually NOT only your final order, but rather a copy of an official enrollment document from the schools or daycares where your children are enrolled.

You will get your refund, but you may be required to produce more proof if necessary. Lastly, if the IRS deems you are wrong, you’ll have to pay it back with penalties and interest.

By the way moms, this letter works both ways, should dads trying to claim the kids inadvertently as well. Like all things in custody disputes, documentation, documentation, documentation. But that’s a discussion for another post.

March 12, 2009
Primary Household Lane
Mytown, TX XXX21
XXX-XXX-XXXX(your cell phone)

Re: <Your Children’s Names>, XXX-XX-XXXX(kids SSN) Double Dependent Claim

To Whom It May Concern:

You will find upon entering and submitting this tax return that my daughter, <Your Child’s Name>, has dubiously been claimed by <My Favorite Ex> (<Her SSN>) in her 2008 filing. Mrs. <My Favorite Ex> is NOT the custodial parent and has not been authorized by me (the custodial parent) to make such claim.

There have been no changes in our court order of October 2003 from which <Your Child’s Name>’s primary residence is my home. She does in fact visit her mother on first and third weekends, but Mrs. <My Favorite Ex> does not determine her residence, education, or medical, not to mention that <Your Child’s Name> spends ¾ of the year in my home.

Your records should indicate that Mrs. <My Favorite Ex> tries to do this every year including lately 2006, 2007, and 2008. Letters and records of similar nature were presented and corrected—much thanks. Historical records will show that I have claimed my daughter in 2003, 2004, 2005, 2006, 2007, and rightfully do so again in 2008.

Please contact me as I can provide any additional information you might need to expedite this filling. I have enclosed <Your Child’s Name>’s 2007/2008 & 2008/2009 “Student Enrollment Form” which reflects middle of the page “Student Resides With 3 = Father & Stepmother.”

Your attention and help in this matter is always appreciated.



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What other suggestions do you have? Have you had problems with your Ex regarding this issue?