Which parent claims child turned age 18

[MJG CPA]

Divorce decree states NONcustodial parent gets to claim child. It states that an emancipation event occurs when the child turns age 18 or when she graduates high school, both of which happened in 2007. Decree does NOT state what happens in the year the emancipation event occurs.

The custodial parent now wants to claim the 18-year old child for 2007, and take the related education credits. The custodial parent provided more than half support, paid for college, etc. The only question is the divorce decree.

Is there a "normal" way that situations like this are handled when a child turns 18? Anyone have experience with this?

[kcjenkins]

Normally, 'emancipation' means that parent no longer has to pay child support, and is also no longer entitled to claim the child. I'd ask if he continued child support. If not, I'd say the custodial parent would now be the one entitled to the deduction.

[mcb39]

I have one of these on my desk. My client (custodial Mom) claimed the child and the education credits. Got rejected because Dad had already claimed the child. He said it was his year. However, he only paid child support until June 7 when child graduated from High School. Education credits were lost because his preparer told him that only the child could claim them. We know that the credits follow dependency. Besides Mom paid most of them. I am now going to amend Dad's return and paper file Mom's or else $1,600 worth of education credits will be lost. At least they were able to agree on this; although I think Mom is going to remburse Dad for his payback due to loss of dependency. How difficult they make our jobs sometimes.

[MJG CPA]

The noncustodial parent stopped paying child support in July. She has already filed her tax return and claimed the child.

My opinion is that the custodial parent who provided over half the support and paid for the college should be the one to claim the child & education credits. NCP is not entitled to educ credits but still thinks she should be able to claim the child because she paid child support over half the year.

I told her paying child support over half the year does not equal providing more than 1/2 support for the year.

I imagine their lawyers are going to have to settle the issue since the parents can't agree. I just wondered what any of your experience has been in cases like this.

[Pacun]

There is a similar question going on here on this forum. In your case, I think the custodial parent will prevail before the IRS and in front of any divorce/custody court.

For me, it is important that my clients prevail on both because the IRS or the courts can have my client amend their return if they feel it is against the rules.

[MJG CPA]

Thanks for the replies.

Pacun confirms my opinion. If the atty's don't come to a conclusion soon, I think it's a strong enough case to have the custodial parent claim the child, so barring some new information, that is what I plan to do.

[mcb39]

Thanks for the replies.

Pacun confirms my opinion. If the atty's don't come to a conclusion soon, I think it's a strong enough case to have the custodial parent claim the child, so barring some new information, that is what I plan to do.

A couple of years ago I took one of these to mediation. The IRS concluded that my client (non-custodial parent) did NOT get the exemption for the child without a signed release of exemption from custodial parent. We had furnished copies of divorce decree and stipulations of dependency and the IRS concluded that county or local law does not stand up against IRS rules which clearly state that the custodial parent gets the exemption no matter what. Just my 2 cents worth of experience. This year I have the custodial MOM who paid more than half of support and college tuition. Father has agreed to amend his return to remove the exemption which he incorrectly took and we will paper file MOM....

[jainen]

>>If the atty's don't come to a conclusion<<

It is not up to the attorneys (unless they decide to prepare the tax returns). It is up to YOU to follow the tax code. On this point, the intent of Congress could not be clearer -- they addressed the issue all by itself, and passed a new law that says court decrees and agreements are irrelevant unless they are covered by Form 8332. If your client doesn't want to sign it, nobody can make her.

[mcb39]

Jainen.....I was pleased to see you support my conclusion. You are correct that it is tax code. It may not always be fair but we have to follow the rules. And, of course, she will hardly ever sign....