Custody agreement

[mimiwrestler]

Hi,

I have a18 years old son who lives with his mother and she pays 100% of his living expenses since my child support obligation was done. Our custody agreement states that I can claim him as a dependent every odd year but she said that she can claim him as her dependent for 2019  based on the IRS guidelines.  Is she correct?  Please advise.

Thanks!

[Opus 17 · Accepted solution]

The IRS regulations follow actual physical custody of the child. Where the child actually spends more than half the nights of the year. That parent is the only parent automatically entitled to claim the child as a dependent. The noncustodial parent can only claim the child if the custodial parent gives the noncustodial parent a signed form 8332 release.

your remedy would be to go back to family court to enforce the custody order. The IRS will not award you the dependent, but the Family Court can order that your ex spouse sign the required form or the Family Court can hold your ex in contempt or take other actions.

There is an exception to this general rule if your custody order was signed in 2008 or earlier. In that case, you can claim the child as a dependent without form 8332. Instead, you must attach copies of certain pages of your divorce decree to your tax return and mail it to the IRS rather than e-filing.  The divorce decree must itself be written with certain specific language, as detailed below in the instructions copied from the IRS.

Post-1984 and pre-2009 divorce decree or separation agreement.

If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.

1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.

2. The custodial parent won't claim the child as a dependent for the year.

3. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.

• The cover page (write the other parent's social security number on this page).

• The pages that include all of the information identified in items (1) through (3) above.

• The signature page with the other parent's signature and the date of the agreement.

[mimiwrestler]

Thanks!  How about if my son is 19 years old?  Full-time college student?

[Opus 17 · Accepted solution]

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@mimiwrestler wrote:

Thanks!  How about if my son is 19 years old?  Full-time college student?

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The same rules apply, provided you understand the rule for "temporary absences."  Children are considered to be living with their parents during temporary absences.  For example, if the child normally lives with the mother and spends a week camping with a friend, that counts as a temporary absence and the mother still gets credit for the child living with her since the child would have lived with her except for the temporary absence.

College is considered a temporary absence, so if the child would normally (for example) spend Wednesdays and alternate weekends with parent #2 and the rest of the time with parent #1, then while the child is away at college, the parents would consider the child to be living with them on the same schedule.  And thus in that case, the child "lives with" parent #1 more than half the year and only parent #1 can claim the child automatically.

Part of the special rules for children of separated or divorced parents is that if the child is emancipated under state law, the child is not considered to live with either parent.  Assuming the child is emancipated automatically at age 18, then the special rules dissolve and the ability to claim the child as a dependent will fall back to the regular procedures for everyone.  The child would be a dependent of the parent where he lived more than half the nights of the year, including temporary absences, and the dependent credit could no longer be released to the other parent.  Or if the child provided more than half their own support, then they are not a dependent of anyone. 

Read this for more:

https://www.irs.gov/pub/irs-pdf/p501.pdf