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?
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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.
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.
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.
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.
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?
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:
Qualifying relative
For HOH filing status purposes a qualifying relative is an individual:
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]
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