Divorce case - what parent claims the child

[skdoorn12]

Daughter turned 18 in 2011. Lived with mom in MI for 7.5 months. Father (in Oregon) paid $300 per month child support Jan-May. Daughter moved to Oregon in Aug to go to college. Lived with dad the remainder of the year.

Original divorce decree (1996) sat that parents claim child alternate years with dad claiming odd years.

Amended custody agreement in 1998 states that mom gets to claim "minor child" as tax dependent for fed and state tax purposes.

My question is now that the child is no longer a minor, does the original decree prevail again allowing the dad to claim the daughter in 2011? He did claim her already for 2011.

We are debating filing an amended return for the mom to claim her. Mom paid over half the support for the year. Paid for the daughter's Christian school from Jan to June. Room/board, car insurance, phone, clothes, all medical bills not covered by insurance, etc. The father's medical coverage is primary and mom's is secondary. The daughter's first year of college is being paid entirely by scholarship from stepdad's employer.

Based on what I read, the mom would be eligible but again, I am unsure if orginal decree would now prevail as daughter is no longer a minor as is specifically stated in the amended custody agreement. Any comments/advice would be appreciated.

[FEDUKE404]

Answer

Call an attorney . . . .

[Gary2]

It seems clear that the mother is the custodial parent. There's not enough information to tell whether either the original or amended decree meets the requirements for the non-custodial parent to claim by submitting the decree in lieu of the 8332 (other than meeting the date requirement). Beyond that, FE is correct - ask an attorney.

[dtlee]

You don't mention when the child reached the age of emancipation. The §1.152-4 regulations are very clear that no one has custody of a child who is emancipated under local law. Thus, if a child reaches that age early in the year, the divorced or separated parents rules do not apply since the child is not in the parents' custody for over half the year. Instead, the standard rules for a Qualifying Child will prevail and no Form 8332 is valid in that scenario. If this is the case, only the mother may claim the Qualifying Child.

If the child was in the custody of one or both parents for more than half the year (because the child became emancipated later in the year), the divorced or separated parents rules will apply and the mother is the custodial parent (who could conceivably use Form 8332 or the equivalent to allow the noncustodial parent to claim the child).

There is some discrepancy from the wording of the regulations as to whether or not the divorce decree can serve for divorces occurring before 2009. The regulations take effect for tax years beginning after 2008 and require the following documentation:

Form designated by IRS. A written declaration may be made on Form 8332, Release of Claim to
Exemption for Child of Divorced or Separated Parents, or successor form designated by the IRS. A
written declaration not on the form designated by the IRS must conform to the substance of that form
and must be a document executed for the sole purpose of serving as a written declaration under this
section. A court order or decree or a separation agreement may not serve as a written declaration.

The regulations specifically state that "This section applies to taxable years beginning after July 2, 2008." I find nothing in the regulations (though others apparently have) to indicate that these rules do not apply to divorces which occur prior to 2009, only tax years which occur prior to 2009. They do reference an exception for a pre-1985 agreement, but that does not apply here.

[Gary2]

There is some discrepancy from the wording of the regulations as to whether or not the divorce decree can serve for divorces occurring before 2009. The regulations take effect for tax years beginning after 2008 and require the following documentation: The regulations specifically state that "This section applies to taxable years beginning after July 2, 2008." I find nothing in the regulations (though others apparently have) to indicate that these rules do not apply to divorces which occur prior to 2009, only tax years which occur prior to 2009. They do reference an exception for a pre-1985 agreement, but that does not apply here.

Pubs. 17 and 501 explicitly say that for post-1984, pre-2009 agreements, appropriate pages may qualify to be used in lieu of the 8332. They rarely do, because such agreements almost always include the condition that the non-custodial parent be up to date on child support.

And, on a quick check, regulation 1.152-4(e)(5) is where this provision is made official - except that the precise deadline is "taxable year beginning on or before July 2, 2008," which is only a significant point for fiscal year filers.

[Lion]

Neither Qualifying Child nor Qualifying Relative reference divorce decrees. The IRS seldom if ever bends to state courts. Mom gets dependent based on more than half the year. If a minor in that state, can give up dependency on Form 8332. But, sounds like no longer a minor, so only mom qualifies to claim dependency. Step through the tax code qualifications, and ignore anything else.

[dtlee]

Pubs. 17 and 501 explicitly say that for post-1984, pre-2009 agreements, appropriate pages may qualify to be used in lieu of the 8332. They rarely do, because such agreements almost always include the condition that the non-custodial parent be up to date on child support.

As does Form 8332.

And, on a quick check, regulation 1.152-4(e)(5) is where this provision is made official - except that the precise deadline is "taxable year beginning on or before July 2, 2008," which is only a significant point for fiscal year filers.

Which was the same date I quoted. However, I mentioned I was having trouble finding the exception to the written declaration requirements.

I found it in (e)(5):

Written declaration executed in a taxable year beginning on or before July 2, 2008. A written declaration
executed in a taxable year beginning on or before July 2, 2008, that satisfies the requirements for the form
of a written declaration in effect at the time the written declaration is executed, will be treated as meeting
the requirements of paragraph (e)(1) of this section. Paragraph (e)(3) of this section applies without regard
to whether a custodial parent executed the written declaration in a taxable year beginning on or before July
2, 2008.

(e)(1) requires Form 8332 or equivalent, but (e)(5) allows a pre-July 2, 2008 document to qualify.