Do you use Form 8332 in this circumstance, and if not, what do you do? Mom and Dad are divorced. Mom has claimed college student for 3 years while in college. Student has always listed her home address as his address on tax returns and financial aid filings. For 2015 Dad wants to claim son. Not that it matters, but divorce papers indicate he can do this. To me, the child should be treated as living in the Mom's house as all financial aid papers show this. My understanding is we are not supposed to use Form 8332 for a 21 year old. So assuming Mom agrees to allow Dad to claim the son do we just remind the Dad to claim the child as a dependent who does not live with him? Or do you give the Dad an 8332?
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Probably what normally happens is dad claims kid, mom doesn't, and everyone is happy. Whether right or wrong.
"My understanding is we are not supposed to use Form 8332 for a 21 year old."
The argument against using 8332 basically being that once a child is age 18 they are an adult and not in the custody of either parent. Thus no custodial or non-custodial parents.
"do we just remind the Dad to claim the child as a dependent who does not live with him?"
Well that would put the child into qualifying relative territory, and one of the rules for qualifying relative is the person cannot be the qualifying child of any other taxpayer. So if he is qualifying child of mom, that could be a problem.
"Student has always listed her home address as his address on tax returns and financial aid filings."
Does student actually return home for summer / breaks or is it just that they list mom's address. If they're actually spending all their non-school time at dad's place obviously there wouldn't be any issue for dad claiming the kid.
Alternatively, I know everyone always treats time at school as automatically being a temporary absence, but probably for some kids that's not the case. Kid moves out takes all their stuff and never intends to return home and it's not so much a temporary absence anymore. Could be that student is not living with either parent for more than half the year if school doesn't count as temporary absence in which case the student wouldn't be qualifying child of either parent and again no problem for dad claiming kid as qualifying relative (assuming support test is met anyway). -
MA uses 18 as the age of majority.Originally posted by Kram BergGold View Post
See if example 6 of Reg. §1.152-4 answers the question remembering Form 8332 is used in conjunction with §152(e).
6. F and G are the divorced parents of Child. In May of 2009, Child turns age 18 and is emancipated under the law of the state where Child resides. Therefore, in 2009 and later years, F and G do not have the right under state law to physical custody of Child for over one-half of the calendar year, and Child is not in the custody of F and G for over one-half of the calendar year. Section 152(e) and this section do not apply, and whether Child is the qualifying child or qualifying relative of F or G is determined under section 152(c) or (d).Comment
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Actually, it is my understanding that 18 is used as the age of emancipation in Massachusetts unless the child is a full-time student in which case they align the rules with the federal dependency rules (how interesting).
If David1980 and NYEnrolledAgent are correct about this, then Form 8332 is null and void since the child is not in the custody of one or both parents. If not, you should use Form 8332 since this child does not live with the father and is not in any other way a Qualifying Child of the father without Form 8332.
My attitude is that Form 8332 does two things; it attests as to who the Custodial Parent is, and it gives the right within a limited timeframe for certain benefits to be allowed to the noncustodial parent.
You should be able to look up the rules for emancipation ages in Massachusetts better than those of us in other states.DougComment
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The custodial parent thing's actually covered in Publication 17. Of course, when exactly emancipation occurs will be a state thing.
"Emancipated child. If a child is emancipated under state law, the child is treated as not living with either parent. See Examples 5 and 6."
And examples 5 and 6.
Example 5—child emancipated in May.
When your son turned age 18 in May 2015, he became emancipated under the law of the state where he lives. As a result, he isn't considered in the custody of his parents for more than half of the year. The special rule for children of divorced or separated parents doesn't apply.
Example 6—child emancipated in August.
Your daughter lives with you from January 1, 2015, until May 31, 2015, and lives with her other parent, your ex-spouse, from June 1, 2015, through the end of the year. She turns 18 and is emancipated under state law on August 1, 2015. Because she is treated as not living with either parent beginning on August 1, she is treated as living with you the greater number of nights in 2015. You are the custodial parent.
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I agree. You cannot have a custodial parent of an emancipated child. Massachusetts law (last time I looked) does not emancipate a full time student under age 24 which means the mother would still be the custodial parent (unless the child moved out).DougComment
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Look What I Found
Thanks to everyone for the stimulating thread. It motivated me to do an internet search. Look what I found
3. What is the age of majority in Massachusetts, and does this grant immediate emancipation?
The "age of majority" in Massachusetts is eighteen. G.L. c. 4, § 7, cl. Fifty-one.
When a person turns eighteen, s/he is considered to have "full legal capacity." This means that the person can make all legal decisions for him/herself unless there is some reason other than age that legally prohibits him or her from making such decisions, such as mental inability. G.L. c. 231 § 85P.
Despite the fact that the "age of majority" is eighteen, this does not mean that all obligations between parents and children will end on the day a child turns eighteen. In fact, Massachusetts courts have stated that in this state, there is no fixed age when complete emancipation occurs, and that it does not automatically occur when the child turns eighteen. For example, in some cases, parents can be required to support their children beyond the child's eighteenth birthday. See, Turner v. McCune, 4 Mass.App.Ct. 864, 357 N.E.2d 942 (1976) and Larson v. Larson, 30 Mass.App.Ct. 418, 469 N.E.2d 406 (1991). This may occur when the child lives with a parent and is principally dependent upon that parent for support.
So in MA, like dtlee stated, we continue to do Form 8332 until the child is not a dependent.Comment
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