Grandmother-in-law claimed MY son on tax. illegal?

My wife and I was divorced in November 2005. We never settled who would claim my son for that year, and I went to file an amended return for 2005 and I found out that my ex-wifes mother had claimed my ex-wife AND MY SON.

I was asked to submit documents showing the child is mine, ect, ect. I am fixing to mail it off.

I was just wondering. Is her grandmother really allowed to do that? Can you claim somebody who is a dependent of somebody else?

Should I be worried the IRS will not correct it and let a grandmother claim my child over me?
Answer:    Well, when someone claims a child, it doesn't matter who the biological parent is. If the child's Grandmother took care of your son most of the year (if he lived with her) then yes, it is legal for her to claim him because she paid most of his living expenses. If he didn't and live JUST with your Ex-Wife, or between her and yourself then it IS wrong for her to claim him, but if your Ex gave her permission to, I don't know if there is much you can do about it.
Did your son live in your mother in law's residence for more than half the year (2005)? If so, she legally can claim him on her tax return.

I do believe, but I can't guarantee, that if your son lived with you for the better part of the year, you can claim him but she can't.

Since it sounds like your son moved out of your residence in November 2005, I would say that the IRS would fix it for you because she should not be able to claim him if he only lived with her for the month of December.

I hope this helps you in some way and I wish you the best of luck in getting this straightened out.

I would get those documents to the IRS asap.
Did your child live with the Grandmother more than 6 months out of the year? Did your ex wife too? Did you support your child more than 1/2 of the support for the year? Can your x be claimed as a dependent on her mother's return? You should have to file a special form for the fed taxes giving them a right to claim your child if you supported more than 1/2. If you did not have the child living with you for 6 months or more throughout 2006 you cannot claim the child. Your x's mother can claim her daughter and the child if they lived with her for 6 months or more throughout the year and if they were not supported more than 1/2 by you. see rules online on the IRS web site for dependents. A child can only be a dependent of one person. I just went through this this year. No one could claim my son. Not even the boyfriend we lived with all year. Since I was the sole custodial parent of him, I am the only one who can claim him. Is your x a custodial parent legally. Who is? Do what the IRS wants you to do. Send them the documents and ask them questions. If you are the sole custodial parent. You can claim the child. otherwise, a form must be filled out. good luck. it is a mess and hard to get resolved.
Typically, whoever provided the most support for a child may claim them as an exemption, Child tax credit, and/or Earned Income Tax Credit (EIC). In case of a divorce, an agreement can be made with both parents as to who claims the exemption in which years (regardless of who the child lived with). In this case, since there was no agreement in the divorce, then whoever provided the majority of the child's support gets to claim the child. If your ex-wife was being supported by her mother, then she could be entitled to claim your son.

In this case, there are a number of unanswered questions, but she could possibly be able to claim him.

Since you two divorced in November, it seems to me that it would be difficult for your ex-wife to have gotten at least 50% of her support by her mother. At the same time, that means that she could probably not claim your son. I think it would be unlikely that she provided at least 50% of his support during 2005.

The only way that she could claim your son is if she did provide a majority of his support in 2005. That would mean that she also provided at least 50% of your and your ex-wife's support. If this is not the case, then the real question is whether you or your ex-wife could claim your son and not the ex-in-law.

If you supported yourself in 2005, then you can claim yourself. Since your ex-wife is being claimed by her mother, it seems like she did not have that much income. That would make it difficult for her to have a claim at her son. That would likely mean that you are the one entitled to claim him.

Does your divorce decree specify who can claim him in 2006? 2007? 2008? and so on? If you are alternating years, and you have the even numbered years, but 2005 is not specified, that may mean that the ex-in-law could claim him if the ex-wife is also being supported by her.

My gut says that your ex-wife and her mother misunderstood tax laws. What they did is totally legal if there is such a clause in the divorce decree stating that she could claim him in odd numbered years (or at least in 2005).
You stated that the child did not live with the grandmother for more than six months, and that the child was not supported by the grandmother. Based on this, the child cannot be a dependent of the grandmother.

Since your ex-wife did not file her own return, that leaves you as the person who claims the child, assuming the child lived with you for more than six months (183 days).

Since the IRS is asking you for the documentation, they will follow up on your claim, and based on the information as stated above, you should prevail in claiming your child for 2005.

Added later: Since the question is regarding the "qualifying child" status of this child, who supports the child is not relevant. What is relevant is that the child did not support himself, and so could be a qualifying child.
If the decree is silent on the exemption claim then the custodial parent gets the exemption. The custodial parent is defined as the one with whom the child spent the most amount of time during the year. (And even if the decree does give it to one parent, there are VERY strict rules on the language that must be in the decree. If the decree doesn't meet the requirements set out in Federal law, the IRS must ignore it and award the exemption to the custodial parent.)

If two parties claim the child, the IRS will use a tiebreaker process. That will award the exemption to a parent before a grandparent.

See IRS Pub 501 for a full discussion on exemption claims and how the IRS handles conflict.
If your son lived in your ex-wife's mother's home for over half the year, then she can probably claim him as a dependent, whether or not she was taking care of him. The rules for claiming a qualifying child (which can include a grandchild) say that the child didn't provide more than half of his OWN support, not that the person claiming him provided more than half.

You said that you had him 4 days a week - did that include four nights also, not just during the day? If it did, then you'd most likely have the valid claim to the exemption - if not, then you can't claim him even if you did pay support.

If your ex-wife is under age 19, or is under 24 and a full-time student, then if she lives with her mom, the mom can probably claim her as a dependent. If that's not the case, then her mom can't claim her if her gross income was over $3300 last year - if she's getting alimony from you, and also working, then she would probably be over that so her mom couldn't claim her.
You would have to have all financial documents of all parties involved and set up a table and collate everything. Who claims the dependency would be determined by who provides over half the support, who is the court appointed custodial parent, etc. If you were divorced in Nov 05 then your ex-wife would have been single for tax purposes. If her Mother supported her and met other requirements then she could claim her; and the child. If your child was not assigned a custodial parent by the court then it really starts to get interesting. Makes one glad not to work for the IRS.

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