Head of household for divorced dad of college student

[rob-gunning]

I'm a divorced dad of 3 girls.  The younger two spend about a 35% of nights with with me, so in past years I've put down that they live with me for 4 months.  My ex is the custodial parent, but we alternate dependents each year.  Since the divorce, I've been filing as single.

This year, according to our plan, I claim my eldest as a dependent, who is 18 and in college and does not provide half of her support.

Turbo Tax says if the dependent is away at school, I can claim those months away as living with me.  If I do that, Turbo Tax recommends I file as head of household.  Given all of the above, should I file as head of household?

[DawnC]

Yes, your daughter's time away at college is considered a temporary absence.  Temporary absences are considered time spent living at home with you.  

You can qualify for Head of Household if you:

1. Were unmarried as of December 31, 2019 and
2. Paid more than half the cost to run your (or a qualifying parent's) home this year(rent, mortgage, utilities, etc.) and
3. Supported a qualifying person.

[Opus 17]

I disagree. 

Under the special rules for children of divorced or separated parents, once a child is emancipated under state law, they are treated as living with neither parent.  That's probably their 18th birthday, although you may want to check the laws of your state.  See IRS publication 501 page 13-14.  https://www.irs.gov/pub/irs-pdf/p501.pdf

If the child actually physically lived with you more than half the nights of the year (or if she turned 18 in 2019, if she physically lived with more than half the nights before her birthday) then you could use the normal rules to claim her as a dependent.  But you can't use the rule about "where she would have lived but for a temporary absence" because that rule can't be used for children of divorced or separated parents who are emancipated.  You need to indicate she does not live with you and she does not qualify you to file as HOH.  

[rob-gunning]

She is under 24 and a full time student who pays for less than half of her support, so I think she qualifies there. 

Also, her mother is remarried and can't file as Head of Household, so can't claim her as a qualifying child.  So still ambiguous to me under the tiebreaker rules in the document that you linked.

[Opus 17 · Accepted solution]

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@rob-gunning wrote:

She is under 24 and a full time student who pays for less than half of her support, so I think she qualifies there. 

Also, her mother is remarried and can't file as Head of Household, so can't claim her as a qualifying child.  So still ambiguous to me under the tiebreaker rules in the document that you linked.

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There are two possibilities, but neither one helps you.

The custody agreement no longer controls who can claim your daughter, if she is emancipated (18 in most states, 19 or 21 in a few).  Therefore, either:

1. no one can claim her as a dependent unless she physically lives in their home more than half the nights of the year.

2. or, the parent who can claim her as a dependent is the parent she would have physically lived with more than half the nights of the year but for the fact she was away at college.

Since you indicated she generally spends about 35% of her time with you (or "spent", before going to college), you would not be the parent where she lives "more than half the nights of the year including temporary absences" and you could not claim her as a dependent or a qualifying person for HOH.  Even though she is not a qualifying person for your ex-spouse, she may be a dependent of your ex-spouse.

The key point is that any custody agreement allowing you to alternate years with your ex dissolves with respect to an emancipated child and you have to fall back on the normal rules for dependents. 

If you think different, you should get professional advice, or file and take the audit risk.