My child has reached the age of emancipation but can I still claim her as my dependent?

Attorney Brad CunninghamQuestion:

My daughter recently reached the age of emancipation and my child support payments were halted. I was given the tax deduction for my daughter as part of the divorce decree and my ex signed IRS Form 8332 each year, granting me that deduction.

Now that my daughter is emancipated, I assume Form 8332 is no longer applicable, but can I still claim her if her as my dependent?

Answer:

 

First let me preface my answer by stating that I am licensed to practice law in Oklahoma and Texas and not in Minnesota, so I am unable to give you any specific advice regarding your question because I am not familiar with Minnesota statues and rules.  I would strongly encourage you to speak with an experienced family law attorney in your jurisdiction who is familiar with Minnesota’s laws.

Your question – can you continue to claim your daughter as your dependent now that she has turned 18 – is one of IRS rules and is probably not controlled by state law.  Tax laws are complex and complicated and I would recommend speaking with a CPA as well as an experienced family law attorney.

I would start by reviewing the Decree to see if the dependency award specifically terminates at age 18.  If not I would argue that your right to claim her as your dependent carries on for as long as you are able to claim her.  If it does terminate at 18 specifically in the Decree you and your ex-spouse could reach an agreement regarding who would claim her and you can continue execute Form 8332 to accomplish that agreement.  If you are able to reach an agreement you will have to consult the IRS code to determine who will be able to claim her for each year.

For you (or your spouse) to claim your daughter as a dependent over the age of 18 she will have to be determined to a “qualifying child” or “qualifying relative.”  Both of these terms have very specific meanings.  If she does not fall into either category neither would be able to claim her on their taxes.

If she is a qualifying child the IRS code provides a tie breaker between you and your ex-wife as to who would receive the exemption: if more than one taxpayer is the child’s parent, the one with whom the child lived for the longest time during the year gets to claim the exemption, or, if the time was equal, the parent with the highest AGI gets to claim the exemption.

It is wise to discuss these matters with your ex-wife in advance.  If both of you claim your daughter you will increase the likelihood of an IRS audit.

 

Bradley K. Cunningham is a Senior Attorney in the Tulsa, Oklahoma office of Cordell & Cordell where his primary practice is exclusively in the area of domestic relations. Mr. Cunningham is licensed in the states of Oklahoma and Texas. 

After growing up in Tulsa, Mr. Cunningham moved to Arkansas where he received his undergraduate degree in Accounting from Harding University in Searcy, Arkansas. He then returned to Oklahoma and received his Juris Doctor from the University of Oklahoma.

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