Q. Which parent gets to claim an 18 year old college student if the divorce decree does not address it?
A. The parent the child lives
I'm not a lawyer. But, it appears that the 2006 decree, awarding you the tax benefits, has expired ("addresses the deduction while my child is a minor"). There is no "custody" once a child reaches the age of emancipation. The IRS rules now govern. Even though a child is not legally a minor at age 18 (in most states), under IRS rules, the child of a taxpayer can still be a “Qualifying Child” (QC) dependent, regardless of his/her income, if:
1. He is under age 19, or under 24
if a full time student for at least 5 months of the year, or is totally &
permanently disabled
2. He did not provide more than 1/2 his own support. Scholarships are
considered third party support and not as support provided by the student. Note that there is no requirement that you provided support.
3. He lived with the parent
(including temporary absences such as away at school) for more than half
the year*
You can continue to claim the child until there is a court order to do otherwise. He's probably not gonna get a court order in another state, without paying for a lawyer there to represent you.
*While living at school, on campus or off, the child is considered to be residing where he was living prior to going to school, unless the details of his living situation indicate that he has permanently moved out (unusual for most 18 year olds). In that case, the parent who provided more than half his support can claim him. There is also a $4050 income test in that case.
