Non custodial parents wants to claim 20 year old

[Flkso]

Tax expert advice if anyone knows here: Can a non custodial parent still claim his 20 year old as a dependent? He contributes nothing financially, rarely if ever sees him, HOWEVER, divorce decree says he can claim him as dependent for as long as he is eligible to be claimed as a dependent.

From what I have read from IRS website is he cannot unless other parent releases a tax form allowing him to. However non custodial parent is claiming rights to claim him until 24 because of decree.

[xmasbaby0]

We do not have nearly enough information.   Is the 20 year old a full-time student?   Did the 20 year old have any income in 2024?   Did he make over $5050 not counting any Social Security?

Who is the "custodial" parent?  Is that you?   

[Flkso]

Full time student- yes. Income over $5000- yes but not over $12500. He is eligible to be claimed by someone. Yes I am the custodial parent. 

[Flkso]

I fully support him financially and for his tuition. I did not sign the tax form releasing him to be claimed as a dependent nor does the divorce decree- GA- say anything about signing a tax form.

[xmasbaby0]

If there is a signed 8332 the non-custodial parent can get the $500 credit for other dependents.  Nothing else.   The child tax credit was lost when your son turned 17.

The custodial parent---you -- can file Head of Household and get earned income credit (if your income falls into the allowable amount).   If you are paying for college you can enter the education credit on your tax return.

Your son can file a tax return of his own but must say on his return that he can be claimed as someone else's s dependent.

[Flkso]

Thank you, there is no signed 8332 form. There never has been. I just want to legally do what is correct. Which I thought was that I could claim him for the $500 credit.

[MonikaK1]

In the situation you described, you are entitled to claim the dependent and not the noncustodial parent. The tax law and applicable IRS rules take precedence over the language in a divorce decree, where there is a conflict. If parents are divorced and do not live together, the custodial parent may sign a release which allows the noncustodial parent to claim the child as a dependent and claim the child tax credit/credit for other dependents for the child, and dependency exemption, if the requirements are met.

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 a claim to an exemption for a child to the noncustodial parent. Although the exemption amount is zero for tax year 2024, this release allows the noncustodial parent to claim the child tax credit, credit for other dependents, or additional child tax credit, if applicable, for the child. The noncustodial parent must attach a copy of the form or statement to their tax return.

@xmasbaby0 is correct that because the dependent is over 17, they can only qualify you for the Credit for Other Dependents. Since the dependent is a full-time student under age 24, the gross income limit doesn't apply.

See this TurboTax tips article and IRS Publication 501 for more information.

[xmasbaby0]

As far as the IRS is concerned ---the IRS cares about physical custody and where the dependent lives.   Living away at school is considered to be a "temporary absence" so you can still say he lived with you all year.   If there is no signed agreement you can say NO to that question in the software when it asks.

Whether your "ex" will get contentious and try to argue about the $500 credit based on the divorce decree is a separate matter which is a legal issue.