I am divorced and have two children. Per my divorce decree I claim one and my ex-husband has claimed the other.
However, the child that my ex-husband has been claiming turned 18 in 2020 and has also lived with me consecutively for the last 2 years. The other child has also lived with me consecutively for the past 12 months.
With the fact that the child that my ex-husband has claimed turned 18 in 2020 can I instead claim that child without consequence from the IRS?
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A child is a qualifying child up to the age of 19 or up to the age of 24 if they are a full time student ... so reaching 18 is not material. Does the divorce decree have a sunset clause on the claiming of the children.
For clarifications purposes:
Does the 18 year old need to be college up to and including age 19? If the child is not in college what are the implications?
It should be noted that the child in question completed the 2019/2020 fall semester of full time class load only and is not continuing college at this time and is instead pursuing regular employment.
Also, please clarify "Sunset Clause"?
The 18 year old does not need to be in college as long as he does not turn 19 before the end of the tax year in question.
Age Test:
To meet this test, a child must be:
Under age 19 at the end of the year and younger than you (or your spouse if filing jointly),
A student under age 24 at the end of the year and younger than you (or your spouse if filing jointly), or
Permanently and totally disabled at any time during the year, regardless of age.
Qualifying Child
The five tests that must be met for a child to be your qualifying child.
A sunset provision or sunset clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law.
Note that the "special rules for children of divorced or separated parents" described in IRS publication 501, do not apply once a child turns 18, or is emancipated under state law (in some states this may a different age than 18. The taxpayer needs to check the laws of their state.)
That means that the rules about transferring a dependent by form 8332, no longer apply. It does not mean you can ignore a divorce order, but it may mean the divorce order is non-enforceable under federal tax law.
In your specific case, assuming that child #1 lives with you more than half the year, but the court ordered that your ex can claim child #1, then in previous years, what should have been happening is that you would indicate on your tax program that the child lives with you more than half the year, and you are releasing the dependent to your ex by giving your ex a signed form 8332, or because your ex has a qualifying court order dated 2008 or earlier that they will attach to their tax return. The child still qualifies you for head of household or EIC, because those benefits always stay with the the parent where the child actually lives and can't be waived or transferred.
Then your spouse would indicate that the child lived with them less than half the year, and they are claiming the child because of a pre-2009 order or a form 8332. They get the dependent exemption and tax credit but not HOH or EIC, and they have to mail a copy of the court order or the original form 8332 to the IRS after e-filing.
If you have not been doing it this way, you might have been depriving yourself of tax benefits, and your ex may have been claiming unallowable benefits.
Now, once the child turns 18, those rules no longer apply. If you gave your ex a form 8332 to claim the child, it would be invalid, and your ex can't claim the child by attaching a copy of the divorce order to their tax return. The normal rules now apply.
That means you can claim a child who lives with you more than half the year, provided that they are age 18 or less, or if they are over 18 but under 24, they are a full time student. "full time student" means full time as defined by the school, for at least one day of 5 months. So, a graduated high school student is considered a full time student for dependent purposes, even if the graduated in May and did not go to college in the fall.
Since your child is 18 as of 12/31/2020, you don't need to worry about the full time student rule. You can claim your child as a dependent if they lived with you more than half the year, and they did not earn more than half their own support.
This is not to say you should do anything to violate your court order, but parts of that order may be invalid as far as the IRS is concerned. The IRS will not object to you claiming the child even if your ex also tries to claim the child, although the IRS may send letters to both parents asking for an explanation. Your ex could complain to the court, but the IRS rules are clear that, once the child is emancipated, the ex can't claim the child unless the child lives with the ex.
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