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Claim as Dependent

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brainycat

Junior Member
What is the name of your state? AR

My son has been living with his mother as per our divorce settlement and is now heading to college. Our divorce settlement states that she gets to claim him as a dependent. However, he is now over 18 years old and will be living away at school. I will be paying for his roomand board as well as his schooling and am wondering (hoping really) that I will be able to claim him on my taxes as a dependent on my tax return to help offset the expenses. Can I legally do this or does the divorce settlemnt still hold sway?

Thanks in advance.What is the name of your state?
 


What is the name of your state? AR

My son has been living with his mother as per our divorce settlement and is now heading to college. Our divorce settlement states that she gets to claim him as a dependent. However, he is now over 18 years old and will be living away at school. I will be paying for his roomand board as well as his schooling and am wondering (hoping really) that I will be able to claim him on my taxes as a dependent on my tax return to help offset the expenses. Can I legally do this or does the divorce settlemnt still hold sway?

Thanks in advance.What is the name of your state?
Did you have a hearing for college expenses yet? and were you ordered to pay for 100%? Your ex wife will still be considered the custodial parent for a dependent student in colllege until he graduates...unless she agrees to waive this by signing IRS form 8332, or you have a court order that says otherwise. In practical terms..it only becomes an issue if both of you take the expemption...and then the first letter you get from the IRS will be a warning that two people have taken the same expemtion. Most of the educational tax credits phase out at a very low income, and depenedncy exemptions won't affect any tax deferred plans you have in your name (529,etc). The only benefit is the dependency exemption itself, and it must have been given to your ex spouse for a reason. Good luck.
 

LdiJ

Senior Member
What is the name of your state? AR

My son has been living with his mother as per our divorce settlement and is now heading to college. Our divorce settlement states that she gets to claim him as a dependent. However, he is now over 18 years old and will be living away at school. I will be paying for his roomand board as well as his schooling and am wondering (hoping really) that I will be able to claim him on my taxes as a dependent on my tax return to help offset the expenses. Can I legally do this or does the divorce settlemnt still hold sway?

Thanks in advance.What is the name of your state?
Under the tax code, time away at college counts as time living with the custodial parent. Therefore, under the tax code mom would still get the exemption for him. However, mom can give you a signed form 8332 allowing you to have the exemption.

Also, there are several different options for education credits/deductions, and they don't all phase out at relatively low levels of income.

The Hope and Lifetime Learning credits phase out between 47k and 57k for a single filer and 94k - 114k for joint filers.

The Tuition and Fees Deduction phases out a 80k for a single filer and 160k for joint filers.


The student loan interest deduction phases out at 55k-70k for a single filer and 110k - 140k for joint filers.

If you are able to take an education credit or the tuition and fees deduction, and mom would only be able to take the dependency exemption you might even be able to negotiate with mom, if she can't see the fairness in allowing you the exemption.
 

brainycat

Junior Member
Thanks for the replies.

One follow up question:

My son is 18 years old. Obviously he can file his own tax return if he chooses. Does he have any say as to which parent can claim him as a dependent?

Thanks
 

LdiJ

Senior Member
Thanks for the replies.

One follow up question:

My son is 18 years old. Obviously he can file his own tax return if he chooses. Does he have any say as to which parent can claim him as a dependent?

Thanks
No, he has no say. In fact, he doesn't even have any say as to whether or not someone claims him rather than him claiming himself. There is an issue though. In order for either parent to claim him the two parents combined must be providing more than 50% of his support. If by any chance he is working and earning enough money that you can't legitimately claim to be providing more than 50% of his support, then neither one of you will be able to claim him.

He can file his own tax return even if one of you claims him. He simply has to note on the return that he is a dependent of another.
 

TinkerBelleLuvr

Senior Member
1. Parent & child -- parental obligation of support -- parent may contractually agree to support child past age of majority. -- Ordinarily, the legal obligation of a parent to support a child ceases upon the child's reaching majority, which is eighteen in the state of Arkansas; however, where a parent has elected to contractually bind himself or herself to support a child past the age of majority, such a contract is as binding and enforceable as any other contract; a child may seek enforcement of a contract providing for postmajority support in his own behalf after he or she reaches the age of majority.
What does it say in your divorce decree concerning college costs? From all appearances, child support/custody should stop with child graduating H.S. and turning 18.

So, then it falls into the "which parent provided more than 1/2 the support for the child", or is it the combined parents providing more than half the support. If the child is working, is he/she providing more than half the support.

We cannot say carte blanche the the custodial parent will automatically get the deduction in this case.
 

LdiJ

Senior Member
What does it say in your divorce decree concerning college costs? From all appearances, child support/custody should stop with child graduating H.S. and turning 18.

So, then it falls into the "which parent provided more than 1/2 the support for the child", or is it the combined parents providing more than half the support. If the child is working, is he/she providing more than half the support.

We cannot say carte blanche the the custodial parent will automatically get the deduction in this case.
"which parent provided more than 1/2 the support for the child" went away with the 2005 changes. Now its simply that both parents combined must pay more than 50% of the child's support, and the custodial parent gets the exemption unless the custodial parent releases it to the ncp, or unless the child provides more than 50% of their own support.

So yes, unless the child goes to live with dad, which the child may now do as they are over 18, college counts as temporary time away from the custodial parent's home.
 

brainycat

Junior Member
Again, thanks for the information.

Unfortunately, the divorce decree does not contain any information concerning college costs. Original drafts did include it (50/50 split) but the final copy did not. I don't remember the exact circumstances as it took place 16+ years ago.
 

TinkerBelleLuvr

Senior Member
What I am trying to get to is that if Arkansas cuts stuff off at 18 and H.S., then the whole 'custodial' parent bit is moot at this point. Then it boils down to WHO is providing more than half.

As for the 'both parents' vs. 'one-parent', I'm into he/she being supported either by one parent, or there being a multiple-person support thing going on. Can't remember the form at the moment.
 

LdiJ

Senior Member
What I am trying to get to is that if Arkansas cuts stuff off at 18 and H.S., then the whole 'custodial' parent bit is moot at this point. Then it boils down to WHO is providing more than half.

As for the 'both parents' vs. 'one-parent', I'm into he/she being supported either by one parent, or there being a multiple-person support thing going on. Can't remember the form at the moment.
Ginny, again I have to disagree with you. It doesn't matter when AR cuts things off, because this applies to the federal tax code, not AR law.

The tax code is very specific on the issue of college being a temporary time away from home, and that the parent providing the child's main "home" is still the custodial parent if the child is a full time student. In your case, for example, your ex is no longer providing your child's main "home", therefore he is no longer the custodial parent under the tax code. However, most kids in college still go "home" for the holidays and summer, Home CAN change for a college student, therefore the custodial parent under the tax code can also change....irregardless of family law.

There is no longer any provision for WHO is providing more than half when its between parents, it only applies if the WHO is the child themselves or a third party (such as a grandparent).

There are lots of parents who really push the WHO envelope when their kids are in college.
If college (including room and board) is being paid by student loans/scholarships, and the child is working part time and full time in the summers and is earning 10k or more, and about all the parent is providing is health insurance and housing during the holidays and summers, it could be nearly impossible to prove that the parents are providing more than 50% of the child's support.
 

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