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Did My Wife Claim Our Children Illegally?



Question: My wife has filed her taxes for 3 years and claimed all four kids. She’s claimed she earned $20,000 each year and that she is single. But we are married and live together with the four kids. I have not filed my taxes for 3 years because of her. I don’t get any of the money, and it’s illegal in my eyes. In reality, I make all the money on the W2 and I’m the head of household. But she won’t let me claim any kids or file married, even though legally I have the right to. I’m not sure what to do. – Titus in Michigan

Jacob Dayan, Co-Founder of Community Tax, responds…

Hi Titus,

This is a tough situation and unfortunately your wife’s choices don’t make you exempt from filing. From the IRS’ standpoint, you’re the one with the issue because you haven’t filed your taxes in three years. Regardless of what your spouse does, you have a legal obligation to accurately file your taxes each year. So, your situation is the one that I’m most concerned about, but let’s look at the situation that you’re describing with your wife first.

Someone filing as Single or Head of Household with an income of $20,000 and four dependents will likely receive a tax refund of several thousand dollars – mostly from the Earned Income Tax Credit or EITC.

If what you allege is true, it seems like your wife is trying to get around some issues that would prohibit her from qualifying for the EITC.

Filing Status Issues

If you are married and live together, she would not qualify to file as Single or Head of Household. The EITC is also not allowed if you choose to file Married Filing Separate. Depending on your income level, both of you may not qualify for the EITC if you filed Married Filing Joint.

Dependent Issues

To claim a dependent on your return, you must (among other requirements) pay over 50% of the living expenses for that dependent. If you earn significantly more than she does, she is likely not meeting that requirement and cannot legally claim the kids.

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What this means for your wife

Based on these facts there is a chance your spouse is illegally claiming a larger refund than she is entitled. If the IRS ever finds out they can reverse the EITC and the dependents and make her pay back any refunds she has received plus significant penalties for illegally claiming the EITC.

What this means for you

Regardless of what she is doing, you still must file. It is against the law not to file a return, so while your wife may be doing something against the law, technically so are you. You will need to file your back returns without delay.

If you owe tax on back returns, the IRS can add a failure to file penalty of up to 25% plus failure to pay penalties and interest.

And in case there is any doubt – you are not required to and should not lie on your return if your wife filed fraudulently. You should file accurately based on your situation.

I would highly suggest that you speak with a professional about the best way to navigate this situation. They will help you file the three years that you missed accurately and help you decide on some next steps moving forward.

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