Which parent gets to claim an 18 year old college student if the divorce decree does not address it?

[amy-justin]

My son is 18 years old and a full time college student.  My divorce was final in 2006 and it states that I get the tax deductions and primary custody, however it only addresses the deduction while my child is a "minor".  Now that my child is over the age of 18, my ex is demanding that he gets to deduct our son on his taxes and has threatened to take me to court if I don't agree.  How does the IRS determine who gets the deduction at this point since my decree doesn't address this once my son is no longer a minor?  I should note that my ex has never provided a roof over our son's head.  My son has never had a bedroom at his home and this past several years he spent one, maybe two nights there on the couch. On breaks from school my son comes to my house or his grandparents.   My ex and I live in different states and he is threatening to take me to court in his home state where the divorce decree was finalized.  Help!  I will do what is legally correct but it just feels wrong that someone who doesn't even provide a home for a child can claim him as a dependent.  Who legally gets the deduction?  

[Hal_Al · Accepted solution]

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

I'm not a lawyer. But, it appears that the 2006 decree, awarding you the tax benefits,  has expired ("addresses the deduction while my child is a minor"). There is no "custody" once a child reaches the age of emancipation. 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:

1. He 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

2. He did not provide more than 1/2 his own support. Scholarships are considered third party support and not as support provided by the student. Note that there is no requirement that you provided support.

3. He lived with the parent (including temporary absences such as away at school) for more than half the year*

You can continue to claim the child until there is a court order to do otherwise. He'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 he was living prior to going to school, unless the details of his living situation indicate that he has permanently moved out (unusual for most 18 year olds). In that case, the parent who provided more than half his support can claim him. There is also a $4050 income test in that case.

[amy-justin]

Child support ceased when our son turned 18 in July so he is no longer paying child support.  Our child has always lived with me when he wasn't at school.  Before college he attended a boarding school however he was always with me when he wasn't there.  He had 5 day breaks every month and all summer off and he always lived with me.   He has never lived with my ex.  My son doesn't have a part time job at school so he doesn't provide his own support.  Bottom line is that if he isn't at school he is with me.  So how does the IRS determine who gets it if its not addressed in the divorce?  And if he tries to take me to family court, will they even address it if my child is no longer a minor?

[Hal_Al]

Q. So how does the IRS determine who gets it if its not addressed in the divorce?
A. As both answers have said; the IRS goes by who he lives with. From your description, that is you. While he is away at school that counts as time living with you, because school is a temporary absence. So, he has lived with you for more than half the year and is your qualifying child dependent.

There are two types of dependents, "Qualifying Children"(QC) and standard ("Qualifying Relative" in IRS parlance even though they don't have to actually be related). There is no income limit for a QC but there is an age limit, a relationship test and a residence test.

[macuser_22]

If 18 is the age of emaciation in your state as it sounds like it is then "custody" is moot and the tax provision that allows a "non-custodial parent to claim the exemption no longer exists.   *ONLY* the parent where the child lived more than half the year can claim a child under the age if 19 (or 24 is a full time student).   The provisions that allow a non-custodial parent to claim ends at the age of emancipation per federal tax law.

[Hal_Al]

macuser_22 makes a good point. Since the "child" is emancipated and not in "custody", the father is unlikely to get a court to give him the right to claim the tax dependent.

[macuser_22]

Re-reading the comment I see the child turned 18 in July so if the birthday is after July 1 (half the year) then the special rules might still apply since the child was not 18 (emancipated) for more that half the year.  This could be a very sticky situation.

See example 6 in IRS Pub 17:
<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html#en_US_2015_publink1000170876">https://www.irs.gov/pub...>

Emancipated child.   If a child is emancipated under state law, the child is treated as not living with either parent. (Under the special rules for Children of divorced or separated parents (or parents who live apart) See Examples 5 and 6.

Example 5—child emancipated in May.

When your son turned age 18 in May 2015, he became emancipated under the law of the state where he lives. As a result, he isn't considered in the custody of his parents for more than half of the year. The special rule for children of divorced or separated parents doesn't apply.

Example 6—child emancipated in August.

Your daughter lives with you from January 1, 2015, until May 31, 2015, and lives with her other parent, your ex-spouse, from June 1, 2015, through the end of the year. She turns 18 and is emancipated under state law on August 1, 2015. Because she is treated as not living with either parent beginning on August 1, she is treated as living with you the greater number of nights in 2015. You are the custodial parent.
Written declaration.    The custodial parent must use either Form 8332 or a similar statement (containing the same information required by the form) to make the written declaration to release the exemption to the noncustodial parent. The noncustodial parent must attach a copy of the form or statement to his or her tax return.

[Hal_Al]

So, the "special rule" could be used for 2016.
 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/tuition credit; the custodial parent is still allowed to claim the same child for Earned Income Credit and Head of Household filing status.. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him.

[skyline_j]

How do loans effect this? My ex has PLUS loans for our 19yo, but she lives with me and I supply cash financial support when needed, including from my limited college fund for her. The loans are larger, but not paid on until she’s done with school.

[Hal_Al]

A PLUS loan is irrelevant*. Loans are just a source of support. A PLUS loan means your ex is providing that support. BUT, In the case of a "Qualifying Child" (QC-a full time student under age 24): who provides the support is not relevant. Note that the support rule is not that the taxpayer  provided more than half the support, but only that the QC didn't provide more than half his own support.

 Where the child lives is the relevant issue ("but she lives with me ").

*When the student takes out a loan totally in his own name (no parent co-sign); that support is considered provided by the student himself. If that amount of support is more than half the student's total support; then neither parent can technically claim the child.  

[StanMan]

Hal_Al:  In one of your answers you give a statement:  "While living at school, on campus or off, the child is considered to be residing where he was living prior to going to school...".    What is the origin of this statement?   Is it from an IRS document, and if so, do you know which one, so I could locate it?   Thanks.

[macuser_22]

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p501#en_US_2018_publink1000220899">https://www.irs.gov/publications...>
Temporary absences.

[bwa]

The parent claiming the exemption is the parent with whom the child lived more than 1/2 of the year, including temporary absences due to education.

I should note that my ex has never provided a roof over our son's head.  

That sounds like he's not parent that the child lived with more than 1/2 of the year.

Now that my child is over the age of 18, my ex is demanding that he gets to deduct our son on his taxes and has threatened to take me to court if I don't agree.

In a dispute with the IRS he will lose.  However, if he is still paying child support it's difficult to predict what a Family Court would order.

[Thisguy]

This is a thread from last year, but currently I am seeking guidance.  In my case, my son left our martial home for college in 2017 where he had a dorm, and now has an apt there (he's now 21) and several months later my ex wife filed for divorce and moved out.  Custody has never been discussed.  I never thought it would be, as he was over 19.  Per the divorce decree, we are alternating years of claiming him as dependent.  For 2018, I filed single with no dependents a f not hoh as it was her year to claim him.  For 2019 I am filing single with dependent and hoh as it is my year to claim him  I learned from my ex, that she is claiming hoh.  Is this setting up a fight?  To my knowledge, he doesnt receive any mail at her home, and I pay for his tuition, food, rent, and truck, etc...she pays for his health insurance, and he does spend more time with her when he is not at school, much to my dismay, but I dont want him to have to choose who he sees more...Will this become an issue?  

[JamesG1]

It could become a problem.  When a child is a dependent of separated or divorced parents, special rules can come into play.

If there is a dispute between the parents and both parents try to claim the child, the IRS will intervene and determine which parent, if either parent, can claim the dependent child.

For instance, IRS Publication 501 under Emancipated Child states:

“If a child is emancipated under state law, the child is treated as not living with either parent.”

Head of Household

The HOH filing status applies to unmarried individuals (or married individuals considered unmarried) who provide a home for a qualified individual, either a qualifying child or a qualifying relative.

Qualifying child

For HOH filing status purposes, a qualifying child is an individual:

• Younger than the taxpayer and under age 19 or under age 24 and a full-time student, or any age and permanently and totally disabled, and
• Who lived with the taxpayer for more than half of the year, and
• Who did not provide over half of his or her own support, and
• Who is the taxpayer’s son, daughter, stepchild, foster child, brother, sister, stepbrother, stepsister, half brother, half sister, or a descendent of any of them (for example, a grandchild, niece, or nephew).

Qualifying relative

For HOH filing status purposes a qualifying relative is an individual:

• Who is not a qualifying child of the taxpayer or any other taxpayer, and
• Who lived with the taxpayer for more than half of the year (except a parent), and
• Whom the taxpayer can claim as a dependent, and
• Who is the taxpayer’s son, daughter, stepchild, foster child, grandchild, brother, sister, half brother, half sister, niece, nephew, father, mother, grandfather, grandmother, aunt, uncle, stepbrother, stepsister, stepfather, stepmother, son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law.

The HOH filing status can only be claimed by the parent who maintains a household for the qualifying child.

Please review the items below.  You may very likely have questions.

What happens when both parents claim a child on a tax return

Guide to filing taxes as head of household

[Edited 02/23/20 11:08 AM]