Custody of older child

[Bees Knees]

But Bees does it make a difference once the child turns legal age be it 18 or 19? Can the custodial parent then let the noncustodial parent take the kid by way of 8332?

The rules for children of divorced or separated parents only determine who is a qualifying child. A qualifying child may be 19 if a full time student and does not provide over half of his or her own support. If the 19 year old no longer fits the qualifying child rules for either parent, then the 8332 no longer applies. For example, you can't use the 8332 to give a qualifying relative over to the other parent.

[Bees Knees]

Thank you. One more question. Is the custodial parent defined as who the child resided with most of the year?
My daughter was away at school (2 hours away) she stayed with me all summer vacation.
We originally had joint custody (every other week). If school is considered a temporary absence would she be considered to have lived with me half of the year plus the 3 months she actually lived with me? Will the IRS consider me the custodial parent even if my ex attaches the original decree? What will the process be if we actually both claim her? Because I dont think he will not file with her as his dependent.
Thanks again so much

Custody is the parent where the child actually lives the longest during the year. Going to school is considered a temporary absence and counts towards the parent that is supposed to have custody of the child during the school days.

[Jesse]

The rules for children of divorced or separated parents only determine who is a qualifying child. A qualifying child may be 19 if a full time student and does not provide over half of his or her own support. If the 19 year old no longer fits the qualifying child rules for either parent, then the 8332 no longer applies. For example, you can't use the 8332 to give a qualifying relative over to the other parent.

So potentially a college student under 24 can be a qualifying child. If all requirements met with a form 8332 a custodial parent can still allow the noncustodial parent to claim the exemption?

[Bees Knees]

So potentially a college student under 24 can be a qualifying child. If all requirements met with a form 8332 a custodial parent can still allow the noncustodial parent to claim the exemption?

Theoretically yes. I believe, however, the issue of custody becomes blurred after a kid goes off to college. Who really has custody if the kid can live where he wants to? The temporary being away at school only works if the kid regularly lives with one parent. But many times once they become their own adult, that situation is no longer the case.

[lwh1960]

custody of older child

In reviewing the IRS publication 17 it states, "a divorce decree is valid for tax purposes until a court having proper jurisdiction holds it invalid."
Then I read "divorce in state court has no jurisdiction over federal matters". I am very confused. The IRS makes it sound like it will honor the decree if it specifies who can claim which child for the exemption. Does this still apply when the child is 19?
I can find nothing that addresses the age of majority.

[dtlee]

Read the Tax Court Memorandum referred to above....TC Memo 2007-324

It also cites earlier cases where they similarly ruled that custody does not exist when a child reaches majority age.

The parent the child lived with the majority of the year is the custodial parent when the child is not emancipated based on local law as I read it.

[Bees Knees]

In reviewing the IRS publication 17 it states, "a divorce decree is valid for tax purposes until a court having proper jurisdiction holds it invalid."

Here is the wording out of IRS Pub 501:

Divorce decree or separation agreement
made after 1984. If the divorce decree or sep-
aration agreement went into effect after 1984,
the noncustodial parent can attach certain
pages from the decree or agreement instead of
Form 8332. To be able to do this, the decree or
agreement must state all three of the following.
1. The noncustodial parent can claim the
child as a dependent without regard to any
condition, such as payment of support.
2. The custodial parent will not claim the child
as a dependent for the year.
3. The years for which the noncustodial par-
ent, rather than the custodial parent, can
claim the child as a dependent.
The noncustodial parent must attach all of
the following pages of the decree or agreement
to his or her tax return.
• The cover page (write the other parent’s
social security number on this page).
• The pages that include all of the informa-
tion identified in items (1) through (3)
• a signature page with the other parent’s
signature and the date of the agreement.
The noncustodial parent must attach
the required information even if it was
filed with a return in an earlier year.

The part that most non-custodial parents don't see in the above rules is the requirement that the custodial parent actually has to provide a signature page agreeing to all of the above. Without that signature, and all the other information that is actually a duplication of Form 8332, the divorce decree has no say. In other words, unless the divorce decree is a carbon copy of Form 8332, it is no good.

[lwh1960]

custody of older child

Last question (I hope).
So when I have to defend my position to the IRS because my ex attached a copy of the decree - how do I respond? Because he said that someone with the IRS told him all he has to do is attach a copy of the decree. (Although it probably was someone hired for the season who doesn't know much more than me)
Thanks for all the help

[Bees Knees]

Did you sign the pages of the decree that he attached? Did it contain your SSN? Did it state the specific year he gets to claim the kid?

If not, then go ahead and claim the kid. The IRS will send a letter to the one who filed last asking for proof. Then you explain your position.

Also, if you hire an Enrolled Agent or a CPA to talk to the IRS for you, you have a better chance of them listening to your position the first time.