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Level 2

Solved

Which parent gets to claim an 18 year old college student if the divorce decree does not address it?

Forum|Forum|7 years ago
June 1, 2019
4 replies
50 views

My son is 18 years old and a full time college student. My divorce was final in 2006 and it states that I get the tax deductions and primary custody, however it only addresses the deduction while my child is a "minor". Now that my child is over the age of 18, my ex is demanding that he gets to deduct our son on his taxes and has threatened to take me to court if I don't agree. How does the IRS determine who gets the deduction at this point since my decree doesn't address this once my son is no longer a minor? I should note that my ex has never provided a roof over our son's head. My son has never had a bedroom at his home and this past several years he spent one, maybe two nights there on the couch. On breaks from school my son comes to my house or his grandparents. My ex and I live in different states and he is threatening to take me to court in his home state where the divorce decree was finalized. Help! I will do what is legally correct but it just feels wrong that someone who doesn't even provide a home for a child can claim him as a dependent. Who legally gets the deduction?

Best answer by Hal_Al

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.

Answer

Level 15

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.

amy-justinAuthor

Level 2

Child support ceased when our son turned 18 in July so he is no longer paying child support. Our child has always lived with me when he wasn't at school. Before college he attended a boarding school however he was always with me when he wasn't there. He had 5 day breaks every month and all summer off and he always lived with me. He has never lived with my ex. My son doesn't have a part time job at school so he doesn't provide his own support. Bottom line is that if he isn't at school he is with me. So how does the IRS determine who gets it if its not addressed in the divorce? And if he tries to take me to family court, will they even address it if my child is no longer a minor?

Alumni - Champ

The parent claiming the exemption is the parent with whom the child lived more than 1/2 of the year, including temporary absences due to education.

I should note that my ex has never provided a roof over our son's head.

That sounds like he's not parent that the child lived with more than 1/2 of the year.

Now that my child is over the age of 18, my ex is demanding that he gets to deduct our son on his taxes and has threatened to take me to court if I don't agree.

In a dispute with the IRS he will lose. However, if he is still paying child support it's difficult to predict what a Family Court would order.

Level 2

This is a thread from last year, but currently I am seeking guidance. In my case, my son left our martial home for college in 2017 where he had a dorm, and now has an apt there (he's now 21) and several months later my ex wife filed for divorce and moved out. Custody has never been discussed. I never thought it would be, as he was over 19. Per the divorce decree, we are alternating years of claiming him as dependent. For 2018, I filed single with no dependents a f not hoh as it was her year to claim him. For 2019 I am filing single with dependent and hoh as it is my year to claim him I learned from my ex, that she is claiming hoh. Is this setting up a fight? To my knowledge, he doesnt receive any mail at her home, and I pay for his tuition, food, rent, and truck, etc...she pays for his health insurance, and he does spend more time with her when he is not at school, much to my dismay, but I dont want him to have to choose who he sees more...Will this become an issue?

Level 15

It could become a problem. When a child is a dependent of separated or divorced parents, special rules can come into play.

If there is a dispute between the parents and both parents try to claim the child, the IRS will intervene and determine which parent, if either parent, can claim the dependent child.

For instance, IRS Publication 501 under Emancipated Child states:

“If a child is emancipated under state law, the child is treated as not living with either parent.”

Head of Household

The HOH filing status applies to unmarried individuals (or married individuals considered unmarried) who provide a home for a qualified individual, either a qualifying child or a qualifying relative.

Qualifying child

For HOH filing status purposes, a qualifying child is an individual:

Younger than the taxpayer and under age 19 or under age 24 and a full-time student, or any age and permanently and totally disabled, and
Who lived with the taxpayer for more than half of the year, and
Who did not provide over half of his or her own support, and
Who is the taxpayer’s son, daughter, stepchild, foster child, brother, sister, stepbrother, stepsister, half brother, half sister, or a descendent of any of them (for example, a grandchild, niece, or nephew).

Qualifying relative

For HOH filing status purposes a qualifying relative is an individual:

Who is not a qualifying child of the taxpayer or any other taxpayer, and
Who lived with the taxpayer for more than half of the year (except a parent), and
Whom the taxpayer can claim as a dependent, and
Who is the taxpayer’s son, daughter, stepchild, foster child, grandchild, brother, sister, half brother, half sister, niece, nephew, father, mother, grandfather, grandmother, aunt, uncle, stepbrother, stepsister, stepfather, stepmother, son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law.

The HOH filing status can only be claimed by the parent who maintains a household for the qualifying child.

Please review the items below. You may very likely have questions.

What happens when both parents claim a child on a tax return

Guide to filing taxes as head of household

[Edited 02/23/20 11:08 AM]

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Level 3

My situation is different. Our child turned 18 in 2020 and mom claimed her on her taxes per the decree until 2019. I paid CS until 2020 when she turned 18 in Oct 2020. In August 2020 she moved out to live at the dorms. Rest of 2020 she spent most of her time off with us than mom.. Now that she is emancipated, in 2021 she chose to spend equal times at both households, I mean down to the hours.

I have remarried and we (my ex and I) split the college tuition and living expenses. I provide her with car, car insurance. I paid CS until 2020 when she turned 18 in Oct 2020. My daughter insists that now I should be able to claim her on my taxes now that the decree does not apply. Can I? TIA

Level 15

Q. Am I able to claim her on my taxes now that the decree does not apply.

A. No, at least not for 2020.

" In August 2020 she moved out to live at the dorms." Being away at school is considered a temporary absence from the parent's home. So, for 2020 she lived with your ex all year (the time before Aug was already the required more than half the year).

As covered earlier in this thread, she is the "qualifying child" of the parent she lives with. Since she is emancipated, she's no longer in anyone's custody, so the special rule for divorced parents no longer applies. This means the parent she lives with can technically no longer release the dependency to the other parent.

For 2021 (unless she provides more than half her own support), she is the qualifying child of the parent she lives with. "She chose to spend equal times at both households" may make that a little fuzzy, but the general rule, for college students, is: she is still considered as living with the parent she lived with prior to going away to school.

Bottom line: you and the ex need to agree on who will claim her.

For an alternate opinion, on what emancipation means, for this issue, see: https://ttlc.intuit.com/community/tax-credits-deductions/discussion/re-dependent-tie-breaker-rules/01/2220242#M207521

Level 3

Thanks