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

[macuser_22]

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@Thisguy wrote:

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. 

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You are correct that "custody"  does not apply.

In this case "custody" does not apply at all if the child is legally an adult in your state.  No parent has custody of an adult and the 8332 form does not apply.

The terms of the divorce decree also become moot one the child becomes an adult.   Who can claim depends on Federal tax law and no divorce decree cannot override Federal law.  Most such decrees state the age of the child when that provision ends.

Only the parent where the child (under age 24 and is a full time student ) physically lived with (or would have live with except for the fact that the child is way for school) can claim the child and all the benefits - they cannot be split.

If the child has permanently moved and is not just temporarily away from his/her normal home to attend school, then no parent can claim as a Qualifying Child Dependent at all since neither parent can meet the half the year residency rule.

A parent can still claim the child as a Qualifying Relative dependent *provided* that the parent paid MORE than half of the child's total support for the entire year AND the child's total gross income for the year was less than $4,200.  A Qualifying Relative dependent does not have to live with the parent, only has to be supported by the parent and have very low income.

[TXDAD]

My situation is different. Our child turned 18 in 2020 and mom claimed her on her taxes per the decree until 2019. I paid CS until 2020 when she turned 18 in Oct 2020.  In August 2020 she moved out to live at the dorms. Rest of 2020 she spent most of her time off with us than mom.. Now that she is emancipated, in 2021 she chose to spend equal times at both households, I mean down to the hours.

I have remarried and we (my ex and I) split the college tuition and living expenses. I provide her with car, car insurance. I paid CS until 2020 when she turned 18 in Oct 2020. My daughter insists that now I should be able to claim her on my taxes now that the decree does not apply. Can I? TIA 

[Hal_Al]

@TXDAD 

Q. Am I able to claim her on my taxes now that the decree does not apply. 

A. No, at least not for 2020.

" In August 2020 she moved out to live at the dorms."  Being away at school is considered a temporary absence from the parent's home. So, for 2020 she lived with your ex all year (the time before Aug was already the required more than half the year).

As covered earlier in this thread, she is the "qualifying child" of the parent she lives with. Since she is emancipated, she's no longer in anyone's custody, so the special rule for divorced parents no longer applies.  This means the parent she lives with can technically  no longer release the dependency to the other parent.

For 2021 (unless she provides more than half her own support), she is the qualifying child of the parent she lives with.  "She chose to spend equal times at both households" may make that a little fuzzy, but the general rule, for college students,  is: she is still considered as living with the parent she lived with prior to going away to school.  

Bottom line: you and the ex need to agree on who will claim her. 

For an alternate opinion, on what emancipation means, for this issue, see: https://ttlc.intuit.com/community/tax-credits-deductions/discussion/re-dependent-tie-breaker-rules/0...

[TXDAD]

Thanks