Can I claim my exes child?

[Brittany_sf01]

My husband and I split up in December 2022. His son moved out with him at that time. Our dissolution was final February 2023. In June of 2023, his son moved back with me. He has lived with me since and will continue to. Can I claim him on my taxes this year (2024)?

[DoninGA]

Assuming he is under the age of 19 and has lived in your home for more than six months and has not provided over one-half of his own support then you should be able to claim him as a dependent under the Qualifying Child rules.

To be a Qualifying Child -

1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant of any of them.
2. The child must be (a) under age 19 at the end of the year, (b) under age 24 at the end of the year and a full-time student or (c) any age and permanently and totally disabled.
3. The child must have lived with you for more than half of the year. Temporary absences while away at college are considered living with you.
4. The child must not have provided more than half of his or her own support for the year.
5. If the child meets the rules to be a qualifying child of more than one person, you must be the person entitled to claim the child as a qualifying child.
6. The child must be a U.S. citizen or U.S., Canada or Mexico resident for some portion of the year.
7. The child must be younger than you unless disabled.

[Brittany_sf01]

The only part I am unsure about is the fact he is not technically my “step son” anymore since his father and I are divorced. 

[Mike9241]

even the IRS got it wrong which was corrected by a tax court. 

from case law and IRS REG 1.152-2(d)

but given the divorce, do X and Y still count as step-children?

As it turns out the regulations provide that

"[t]he relationship of affinity once existing will not terminate by divorce or death of a spouse ."

So the Tax Court ruled that

petitioner's divorce did not terminate his stepparent-stepchild relationships with X and Y. Accordingly, they are petitioner's stepchildren, thus satisfying the relationship test. We therefore hold that X and Y are petitioner's qualifying children for purposes of the dependency exemption (2011 case. there is no longer a dependency exemption)

thus based on the REG and case law he is still your stepson.

[Opus 17]

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@Brittany_sf01 wrote:

The only part I am unsure about is the fact he is not technically my “step son” anymore since his father and I are divorced. 

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For purposes of claiming a dependent, a step-parent is always a step-parent, even after a subsequent divorce or the death of the biological parent.  This is also confirmed in publication 501 on page 18, where it says "Any of these relationships that were established by marriage aren't ended by death or divorce."