Do I still need to file 8332 if my full-time student is over 19?

[aylam8]

I have a divorce decree that allows me to claim my daughter as a dependent even though I am not the custodial parent. Thus, I have been filing 8332 ever since the divorce. However, she is over 19 now but still a full-time student, and both parents still pay for over 50% of her expenses. So, I continue to claim her as a dependent. Do I still need to file form 8332 even though she is over 19 and considered "emancipated" now, but I am still claiming her as a dependent per divorce decree?

[ColeenD3]

It's either one or the other, she is either emancipated or a dependent. If she qualifies to be your dependent, as a noncustodial parent, you need to file Form 8332. If she does not meet either qualification, she is not your dependent, regardless of what the divorce decree says.

Qualifying child

In addition to the qualifications above, to claim an exemption for your child, you must be able to answer "yes" to all of the following questions.

• Are they related to you? The child can be your son, daughter, stepchild, eligible foster child, brother, sister, half-brother, half-sister, stepbrother, stepsister, adopted child or an offspring of any of them.
• Do they meet the age requirement? Your child must be under age 19 or, if a full-time student, under age 24. There is no age limit if your child is permanently and totally disabled.
• Do they live with you? Your child must live with you for more than half the year, but several exceptions apply.
• Do you financially support them? Your child may have a job, but that job cannot provide more than half of her support.
• Are you the only person claiming them? This requirement commonly applies to children of divorced parents. Here you must use the “tie-breaker rules,” which are found in IRS Publication 501. These rules establish income, parentage, and residency requirements for claiming a child.

Qualifying relative

Here is a checklist for determining whether a relative qualifies.

• Do they live with you? Your relative must live at your residence all year or be on the list of “relatives who do not live with you” in Publication 501. About 30 types of relatives are on this list.
• Do they make less than $4,300 in 2020 or 2021? Your relative cannot have a gross income of more than $4,300 in 2020 or 2021 and be claimed by you as a dependent.
• Do you financially support them? You must provide more than half of your relative’s total support each year.
• Are you the only person claiming them? This means you can’t claim the same person twice, once as a qualifying relative and again as a qualifying child. It also means you can’t claim a relative—say a cousin—if someone else, such as his parents, also claims him.

[Bsch4477]

As long as you claim her as a dependent and you are not the custodial parent you have to file the 8332. 

[aylam8]

Thank you for your response. I guess I was a little confused about what "custodial" mean. I thought "custodial/non-custodial" did not apply after she turned 19. So, as long as she is a full-time student under 24 and both parents pay for >50% of her living expenses, I am still considered the "non-custodial" parent and therefore still need to fill 8332 to continue filing her as a dependent?

[ColeenD3]

Yes, the noncustodial parent files Form 8332 with their return. If they continue to be a full-time student, nothing changes by being age 19.

Custodial parent and noncustodial parent.   The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.

  If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year.

  A child is treated as living with a parent for a night if the child sleeps:

• At that parent's home, whether or not the parent is present, or
• In the company of the parent, when the child doesn't sleep at a parent's home (for example, the parent and child are on vacation together).

Equal number of nights.   If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI).

[aylam8]

ColleenD3, thanks for your advice thusfar. I guess I am still unclear about the "noncustodial parent" question. Before she turned 19, we abided by the parenting schedule, which had my daughter stayed with me <50% of the time. Thus, I understand I was the "noncustodial parent", filed as "single", claimed her as a dependent per divorce decree, and filed 8332. I did not treat her like a "qualifying child". I assume this was done correctly?

However, she is now over 19 and a full-time college student away from home with no friend of the court enforced parenting schedule to follow. And when she does come home, she stays with me more than the other parent.  Also, I am still claiming her as a dependent per divorce decree (ends when she pays for >50% of her expenses or is over 24).  Do I have to follow how we have been doing it all these years (file "single", etc.), or can I treat her as a qualifying child now as a college student and claim "head of household"? If the latter, does that make me the "custodial parent" now and do I still need to file 8332? 

[Bsch4477]

1.  If she spends more nights with you then you are the custodial parent and if otherwise qualified can file as Head of Household and do not need the 8332. 

2.  When she is 24 and earns more than a certain amount ($4,300 in 2021 but this increases slightly year to year) she is no longer a dependent. 

3.  You should be clear with your ex spouse that you are claiming her as the custodial parent since your ex spouse can now no longer file as Head of Household with your child as a qualifying child. 

4.  Your filing as single with the 8332 and claiming her as you have been previously was correct. 

[aylam8]

Concerning #3, the ex spouse has remarried and have been filing "married filing jointly" for several years now.  Also, we both make too much to qualify for any of the tax benefits that comes with a "qualifying child", except for me in the case of being able to go from "single" to "head of household" now.  Does that mean there is no impact to the ex spouse whether I claim "single" or "HOH"?

[Bsch4477]

Correct. She files jointly as always. You might exceed income limit but if not you can claim education credit if otherwise qualified.