No, if a child is emancipated (generally age 18 or older), Sec. 152(e) does not apply, and a Form 8332 won't enable the custodial parent to release the exemption (the parent will have to prove that the child is a "qualifying child" or "qualifying relative").
As long as your daughter resides with your ex-spouse and your ex-spouse provides more than 50% of her support he can continue to file as Head of Household.
No, the custodial parent does not continue after your daughter reaches the age of 18 unless your divorce decree specifically provides otherwise. Was your daughter reaches 18 there is no custodial parent and there are different rules to look at for income tax purposes. The IRS rules now apply.
Because your daughter is over 18, she is considered emancipated under the law. Thus, neither parent had custody of your daughter, making Sec. 152(e) for divorced parents inapplicable to determine who could claim the children. Instead, the general rule of Sec. 152(a), which looks at who provided over half of the person's support is applied to determine whether the child was a dependent.
Below are questions and answers to help you determine who would be the parent that has the right to claim the daughter. For tax purposes, once your daughter reached age 18, the rules change, and Form 8332 can no longer be relied on for claiming your daughter.
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
Once your daughter reached the age of 18, the divorce decree no longer governs the dependency deduction. 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:
- She 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
- She did not provide more than 1/2 his own support. Scholarships are considered third-party support and not as the support provided by the student. Note that there is no requirement that you provided support.
- She lived with the parent (including temporary absences such as away at school) for more than half the year* You can continue to claim the daughter until there is a court order to do otherwise. She'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 she was living prior to going to school unless the details of her living situation indicate that she has permanently moved out (unusual for most 18-year-olds). In that case, the parent who provided more than half her support can claim her.
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