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exemption for 18 year old under divorce decree


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#1 Tander

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Posted 20 January 2013 - 12:34 PM

Son turned 18 on July 6, 2012 and graduates on May 25, 2013. He has never stayed with his father and has always lived with me. I don't know if child support factors into irs laws (it doesn't with the divorce decree) but his child support ended on Dec 18, 2012 because of an overpayment instead of continuing until he graduates in 2013. Can I claim him for an exemption since he lived with me all year and was emancipated under state law on July 6, 2012 accoring to irs laws. Divorce decree only says ncp can claim exemption beginning 2004 and thereafter. No end date - child support was listed until 18 or 19 if still in school. Not sure if this would make a difference or not.

#2 LegalwriterOne

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Posted 20 January 2013 - 12:55 PM

You asked this question on another internet board. The answer isn't going to change:

"Emanicipation has nothing to do with the tax law part of this. As I said before, under the tax law, you'd be entitled to the dependent exemption since the child was under age 19 at the end of 2012, had lived with you the entire year, presumably did not provide over half his own support, and you do not execute a waiver (e.g. a Form 8332) allowing the noncustodial parent (NCP) to claim the child.

Your problem here is that if you do claim the exemption, you are almost certainly going to violate the court order. The court order says that he gets to claim the exemption for tax years 2004 and after. Relying on the wording “minor child” to mean that once the child is no longer a minor the NCP cannot claim the exemption anymore is probably misplaced. The child was a minor when the order was written, and very likely the term “minor child” was simply how the child was referred to throughout the order. In other words, it likely was not meant to do anything more than act as a label to identify who the court was talking about rather than as a limitation on how long the NCP would claim the kid. Had the court intended it otherwise, I'd have expected it to read something like "the noncustodial parent may claim the dependent exemption for the child for tax years 2004 through and including 2011."

Even if you were correct, the problem is that the kid turned 18 during the year, so it would be ambigious as to whether the child could be claimed since the child was a minor for at least part of the tax year. Since the order doesn’t specifically state when the NCP's claim to exemption ends, you are at risk of violating the order if you claim the exemption. In my state, orders written as you described would be interpreted to mean that the NCP gets to claim the exemption for as long as he is obligated to pay support. You really need to consult a family law attorney for an opinion on what your order requires. You don't want to risk possibly violating the court order without good legal advice from an attorney who has read the order and practices family law in the state where that order would be enforced."

#3 pg1067

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Posted 21 January 2013 - 04:34 PM

he . . . was emancipated under state law on July 6, 2012 accoring to irs laws.


This statement makes no sense. Your son was "emancipated" when he turned 18 (assuming your not in MS, NE, AL, or DC where the age of majority is 19 or 21). The age of majority ("emancipation") is defined by state law and has nothing to do with federal law or IRS regulations.


Can I claim him for an exemption since he lived with me all year and [turned 18] on July 6, 2012. . . .


Assuming "claim him for an exemption" means claim him as a dependent on your federal income tax return, that depends on whether he meets the requirements set forth in the IRS regulations. The criteria for claiming a dependent are set forth in IRS Publication 501, which is available at www.irs.gov. I also believe more limited information is available in the instructions for the 1040 tax return. With respect to an adult child, I believe you can claim him if he lived with you for at least half the year and you provided the majority of his support (but I'm not absolutely positive about that, so read the publication). Whether or not you or the child's other parent paid child support isn't relevant.

Note that who gets to claim a child as a dependent is a matter of federal tax law, not state law or the provisions of a divorce decree.

#4 Tax_Counsel

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Posted 23 January 2013 - 01:06 AM

Note that who gets to claim a child as a dependent is a matter of federal tax law, not state law or the provisions of a divorce decree.


This statement implies that the provisions of a divorce decree/custody order concerning the dependent exemption do not matter, and with that I disagree. You are correct that federal tax law sets the rules for when a taxpayer may claim a dependent exemption for another person. Neither state law nor a state court order may override federal tax law. But federal tax law provides a choice to divorced or separated parents in some circumstances as to which parent will claim the exemption. It is because of that choice that divorce decree or custody order may indeed be relevant to determining which parent may claim the exemption.

Specifically, in circumstances where the custodial parent (i.e. the parent with whom the child lived for the greater part of the year) is entitled to claim the dependent exemption for the child, the custodial parent may allow the noncustodial parent to claim the exemption instead. The custodial parent must execute a waiver agreeing not to claim the exemption for the child and allowing the noncustodial parent to claim it instead. The waiver must be done on Form 8332 or contain all the same information as required on that form and the waiver must be attached to the noncustodial parent’s federal income tax return.

Because federal tax law permits the parents to shift the dependent exemption as described in the previous paragraph, a state court may order that the noncustodial parent is entitled to claim the exemption and that the custodial parent must execute the Form 8332 or other acceptable waiver to permit the noncustodial parent to claim that exemption. Such an order does not attempt to override federal law and thus is enforceable against the parents that are subject to the order. The state court cannot, of course, order the IRS to do anything, but no such order directed at the IRS is needed to accomplish the goal of allowing the noncustodial parent to claim the exemption.




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