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Vague divorce agreement regarding dependent

BurntOut

Junior Member
#1
What is the name of your state (only U.S. law)? Pennsylvania

I have talked with my accountant and searched the internet for legal answers and want to get your stance on my conclusions.

There are no dates listed on the divorce agreement except the date it was signed on the front in 2008. In the agreement, its simply states each parent may claim a specific child on their respective tax returns. Since there are no dates, I would assume any "legality" or specific assignment would end when they turn 18 or 19 (adult status), or at the will of the adult child to choose their own way to file. Plus, I went online and found a quick test on efile, answering a few questions to show a "qualifying child" or a "qualifying relative," both of which came back negative for dad. The child, now 21 years old, full time college student, working part-time (made over $4050 threshold), has become an argument.

Dad paid support during that the required years, and then the child was emancipated of the order at 18, and support ended. Dad was never the custodial parent. When support ended, that ended pretty much everything, and for the past couple years, dad has only contributed small financial helps directly to the kids here and there, nothing that compares to food and housing like I contibute. I have been the custodial parent for both children, provided 100% of their care and expenses after support ended

From everything I've read, if the parent doesn't provide at least 50% of child's support, and doesn't live at his address at least 50% of the year, it is fraudulent for him to claim child on his taxes. He actually pays ZERO towards any of child's expenses. Child's home is address is here, I pay for the cell phones and food, take care of getting the health insurance and do the FAFSA filings, and child pays for their own car insurance, living expenses and food at college. Dad shouldn't be using child on his tax return regardless.

Dad thinks he deserves to claim child on his tax return because of divorce agreement. I feel that ended at age 18. I found this statement on a tax advice site "The court also noted that because the children were over 18, they were considered emancipated under state law. Thus, neither parent had custody of the children, making Sec. 152(e) for divorced parents inapplicable to determine who could claim the children. Instead, the general rule of Sec. 152(a), which looks at who provided over half of the person's support, applied to determine whether the children were dependents."

As far as I know, dad plans on claiming child on his tax return regardless of being told he would be committing fraud, and also regardless of child telling him not to claim them. Is there a clear answer? We do not want any chance of student loans or grants being affected because of him claiming when it is my income that is used to determine eligibility.
 


LdiJ

Senior Member
#2
What is the name of your state (only U.S. law)? Pennsylvania

I have talked with my accountant and searched the internet for legal answers and want to get your stance on my conclusions.

There are no dates listed on the divorce agreement except the date it was signed on the front in 2008. In the agreement, its simply states each parent may claim a specific child on their respective tax returns. Since there are no dates, I would assume any "legality" or specific assignment would end when they turn 18 or 19 (adult status), or at the will of the adult child to choose their own way to file. Plus, I went online and found a quick test on efile, answering a few questions to show a "qualifying child" or a "qualifying relative," both of which came back negative for dad. The child, now 21 years old, full time college student, working part-time (made over $4050 threshold), has become an argument.

Dad paid support during that the required years, and then the child was emancipated of the order at 18, and support ended. Dad was never the custodial parent. When support ended, that ended pretty much everything, and for the past couple years, dad has only contributed small financial helps directly to the kids here and there, nothing that compares to food and housing like I contibute. I have been the custodial parent for both children, provided 100% of their care and expenses after support ended

From everything I've read, if the parent doesn't provide at least 50% of child's support, and doesn't live at his address at least 50% of the year, it is fraudulent for him to claim child on his taxes. He actually pays ZERO towards any of child's expenses. Child's home is address is here, I pay for the cell phones and food, take care of getting the health insurance and do the FAFSA filings, and child pays for their own car insurance, living expenses and food at college. Dad shouldn't be using child on his tax return regardless.

Dad thinks he deserves to claim child on his tax return because of divorce agreement. I feel that ended at age 18. I found this statement on a tax advice site "The court also noted that because the children were over 18, they were considered emancipated under state law. Thus, neither parent had custody of the children, making Sec. 152(e) for divorced parents inapplicable to determine who could claim the children. Instead, the general rule of Sec. 152(a), which looks at who provided over half of the person's support, applied to determine whether the children were dependents."

As far as I know, dad plans on claiming child on his tax return regardless of being told he would be committing fraud, and also regardless of child telling him not to claim them. Is there a clear answer? We do not want any chance of student loans or grants being affected because of him claiming when it is my income that is used to determine eligibility.
Dad is wrong. He is not allowed to claim the child at all. Being away from home for college counts as a temporary absence from the custody parent's home which allows the custodial parent to still claim the child if appropriate, but not the non-custodial parent unless you were to sign a form 8332 releasing the exemption to dad.

However, If the child is paying their own living expenses and food at college (not talking about tuition and fees, but just living expenses and food) plus his own car insurance then there is a chance that the child may be providing more than 50% of his own support, therefore there is a chance that the child would not be anyone's dependent. You might want to add up what the child is paying versus what you are paying to make sure that you can substantiate that the child is not providing more than 50% of their own support.
 

Zigner

Senior Member, Non-Attorney
#3
Dad is wrong. He is not allowed to claim the child at all. Being away from home for college counts as a temporary absence from the custody parent's home which allows the custodial parent to still claim the child if appropriate, but not the non-custodial parent unless you were to sign a form 8332 releasing the exemption to dad.

However, If the child is paying their own living expenses and food at college (not talking about tuition and fees, but just living expenses and food) plus his own car insurance then there is a chance that the child may be providing more than 50% of his own support, therefore there is a chance that the child would not be anyone's dependent. You might want to add up what the child is paying versus what you are paying to make sure that you can substantiate that the child is not providing more than 50% of their own support.


What custodial parent? :confused:
 

BurntOut

Junior Member
#4
custodial

Dad is wrong. He is not allowed to claim the child at all. Being away from home for college counts as a temporary absence from the custody parent's home which allows the custodial parent to still claim the child if appropriate, but not the non-custodial parent unless you were to sign a form 8332 releasing the exemption to dad.

However, If the child is paying their own living expenses and food at college (not talking about tuition and fees, but just living expenses and food) plus his own car insurance then there is a chance that the child may be providing more than 50% of his own support, therefore there is a chance that the child would not be anyone's dependent. You might want to add up what the child is paying versus what you are paying to make sure that you can substantiate that the child is not providing more than 50% of their own support.
What custodial parent?
Both college age children live with me when college is not in session. I bought all of their housing items (kitchen supplies, beds and mattress, desks, etc), the food and electric at school is supplemented from college loans. According to what I've "read" up until age 24 of a full time college student living at home is still considered the "custodial" parent.
 
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BurntOut

Junior Member
#5
Dad is wrong. He is not allowed to claim the child at all. Being away from home for college counts as a temporary absence from the custody parent's home which allows the custodial parent to still claim the child if appropriate, but not the non-custodial parent unless you were to sign a form 8332 releasing the exemption to dad.

However, If the child is paying their own living expenses and food at college (not talking about tuition and fees, but just living expenses and food) plus his own car insurance then there is a chance that the child may be providing more than 50% of his own support, therefore there is a chance that the child would not be anyone's dependent. You might want to add up what the child is paying versus what you are paying to make sure that you can substantiate that the child is not providing more than 50% of their own support.
So do you agree that if dad files taxes claiming child, after being told it would be fraud, he is breaking the law? If child or myself uses the claim on taxes knowing Dad is refusing to give up the claim, would dad ultimately be the one who could get in trouble?
 
#6
If you were swapping years in the past a form 8332 may be out there. I doubt the father would get in real trouble or that it would be considered fraud.

If you sone is going to claim himself it would be best if he got his taxes filed ASAP.
 

BurntOut

Junior Member
#7
If you were swapping years in the past a form 8332 may be out there. I doubt the father would get in real trouble or that it would be considered fraud.

If you sone is going to claim himself it would be best if he got his taxes filed ASAP.
To be honest, I was never asked or told to sign an 8332 by any of the tax preparers, or the lawyer who drew up the divorce agreement back in 08, so there is none. We just followed the agreement, but now they are adult age, and looking into the legalities of it all trying to determine why he should still be allowed to claim child, has been eye opening. I've been providing all their needs alone since ordered support stopped, without complaint actually, but now I don't think it's fair that he provides nothing yet claims the exemption on taxes.
 

HRZ

Senior Member
#8
Suggestion...if you Mom meet the criteria to claim children under IRC then make a speedy filing of your tax return .
 

BurntOut

Junior Member
#9
Suggestion...if you Mom meet the criteria to claim children under IRC then make a speedy filing of your tax return .
There are tax forms we need to wait for that don't typically show up until after the end of January. In any case, even if dad would rush to get his taxes done first, we are still planning on filing using the exemption. If the IRS finds a duplicate claim, I would believe it would go against him even if we filed after he does.

Unless a lawyer on this site can provide a solid reason for us not to use the exemption?
 

LdiJ

Senior Member
#10
What custodial parent? :confused:
This has been brought up before Zig...the IRS's definition of custodial parent is what counts in this case. The IRS's definition of custodial parent is the parent with whom the child primarily lives...and college is considered to be a temporary absence from the custodial parent's home, up until age 24.
 

LdiJ

Senior Member
#11
There are tax forms we need to wait for that don't typically show up until after the end of January. In any case, even if dad would rush to get his taxes done first, we are still planning on filing using the exemption. If the IRS finds a duplicate claim, I would believe it would go against him even if we filed after he does.

Unless a lawyer on this site can provide a solid reason for us not to use the exemption?
You are correct. Dad is the one who would end up with a problem with the IRS, assuming that neither of the children are providing more than 50% of their own support, in which case both parents could be in trouble for claiming that particular adult child.
 

LdiJ

Senior Member
#12
So do you agree that if dad files taxes claiming child, after being told it would be fraud, he is breaking the law? If child or myself uses the claim on taxes knowing Dad is refusing to give up the claim, would dad ultimately be the one who could get in trouble?
Yes, dad is the one who would ultimately end up in trouble.
 

Zigner

Senior Member, Non-Attorney
#13
This has been brought up before Zig...the IRS's definition of custodial parent is what counts in this case. The IRS's definition of custodial parent is the parent with whom the child primarily lives...and college is considered to be a temporary absence from the custodial parent's home, up until age 24.
Where do you get that definition?
I understand this is a minor disagreement over the semantics of it...but once the child is this old we're not talking about a "custodial parent", we're simply talking about the parent with whom the child resides. Furthermore, considering that a brother (etc.) of the "child" could qualify for the same treatment, it isn't correct to say "custodial parent".

I don't disagree with your point at all, just the phrasing.
 

Zigner

Senior Member, Non-Attorney
#14
For the OP:

I apologize for the sidetracking of the actual question. I completely agree that you are the one who can properly claim the child, providing the other conditions (ie: you provide over half the support of the child) are met.
 

LdiJ

Senior Member
#15
Where do you get that definition?
I understand this is a minor disagreement over the semantics of it...but once the child is this old we're not talking about a "custodial parent", we're simply talking about the parent with whom the child resides. Furthermore, considering that a brother (etc.) of the "child" could qualify for the same treatment, it isn't correct to say "custodial parent".

I don't disagree with your point at all, just the phrasing.
Yes, but in this instance the person is still a "qualifying child" for tax purposes, not a qualifying relative...and the IRS goes by their rules which says that the exemption automatically goes to the custodial parent (as the IRS defines custodial parent) unless the custodial parents give a signed form 8332 to the non-custodial parent. So, for tax purposes a student can have a custodial parent clear up until they turn 24.

A brother or sister cannot necessarily claim their sibling as a "qualifying child" unless certain conditions are met, so its not quite the same thing.
 
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