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Children over 18 and divorce

My ex-husband who is the non-custodial parent was allowed to claim the 2 older children (I claim the 3rd who is the youngest) on his taxes when we got divorced and they were minors.  Flash forward to now and the oldest turned 18 in Jan 22 - she has always lived with me full time and I am the legal guardian.  She is now a student and dad is not paying anything towards college.  I have not filled out any paperwork allowing him to continue to file with her as a dependent.  I went to file my taxes and he already claimed her so it was rejected. 

 

Does he have any right to her as a dependent?  It is impacting her education deduction as well.  

 

I have another child turning 18 this year and I fear the same scenario-- any help is appreciated.

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5 Replies
BrittanyS
Expert Alumni

Children over 18 and divorce

Can you clarify if you have a divorce decree stating who can claim the child?

 

If your divorce agreement did not specify who claims the children as dependents, then the custodial parent gets to claim them. If you have joint custody, the parent who has the child the greatest number of days during the tax year gets to claim the child as a dependent.

 

If you are the custodial parent and there is no divorce decree, and you did not sign a form 8332, release of claim to exemption for child by custodial parent, you can file the return by mail.  The IRS will process the return and will send notices to you and your ex-husband wanting proof of who has the right to claim the child.  

 

For more information, see the link below:

 

Divorce & Taxes

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Children over 18 and divorce

No----if you are the custodial parent, he cannot claim them for anything other than the $500 credit for other dependents IF there is a signed agreement allowing him to do so.   You can still file as HOH and get earned income credit and education credits for the student.    With no signed agreement----you also get the $500 credit yourself.

 

 

Someone else claimed my dependent and my return was rejected

If someone else claimed your dependent already, then your e-filed return will be rejected.  Print, sign and mail your own return which claims your dependent.  Mailed returns are processed differently by the IRS.  It will take some time (maybe even up to a year) but eventually the IRS will contact both parties and sort out who could rightfully claim the dependent.  The person who wrongfully claimed the dependent will face repayment of refund $, plus penalties.

 

When you mail a tax return, you need to attach any documents showing tax withheld, such as your W-2’s or any 1099’s.  Use a mailing service that will track it, such as UPS or certified mail so you will know the IRS/state received the return.

 

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**

Children over 18 and divorce

The divorce decree states he has the older 2 for tax purposes.  I have full custody and my child has not visited him at all since she turned 18.  My understanding was the decree only covered the children until their 18th birthday.

Children over 18 and divorce

There is no signed agreement stating he could claim the child after she turned 18.   The taxes were rejected due to the child being claimed by him and it won't allow me to get the $500 or the addition hundreds of dollars for the thousands of dollars I spent for college educational expenses as a credit to tax owed.

Children over 18 and divorce

You have to MAIL your tax return claiming your children and claiming the education credit.  

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**
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