<p>My former husband tries to claim my full time college age son every year as his dependent. According to the IRS publication 501, our son is MY dependent. He lives with me when school is not in session, I provide for his living expenses and I pay a court ordered portion of his tuition. Somebody please help me!!! My former spouse is a convincing and savy salesman. Do I go ahead and claim him anyway and face the IRS later or just hope that former husband gets confronted by the IRS.</p>
<p>Who takes the 1098-T tuition deduction? You or your ex?</p>
<p>If you are the custodial parent, you should claim him. But, I would inform your ex-husband that you are going to claim your child so it won’t be a surprise and he has a chance to update his dependents list.</p>
<p>Actually, if you file your taxes before your ex, his return will be flagged when he tries to claim your child. He’ll get a letter from the IRS, along with a bill and possibly an underpayment penalty. That happened to my ex-BIL when he insisted on claiming the kids when he wasn’t entitled to (and it wasn’t part of the divorce decree either). But, if you’ve given up your right to claim them as part of the divorce settlement, you have to abide by that.</p>
<p>sk8rmom “if you’ve given up your right to claim them as part of the divorce settlement, you have to abide by that.”</p>
<p>Exactly, the OP should read over her divorce decree to determine whether there is any discussion regarding who is entitled to claim the son as a dependent. I’m assuming that the ex wants to claim the son as a dependent because he’s paying child support and/or tuition as well. If not spelled out in the divorce decree then usually the one that gets to claim credit is the parent which the child lives with for the majority of the time (in this case the mother during summer). IMO, if the OP feels she’s entitled to the deduction then she should claim it. She’s not responsible for whether her ex properly reports his taxes.</p>
<p>For Federal income taxes, the divorce decree or separation agreement is the governing document. If the decree/agreement is silent on this matter, the parent with custody for more than half of the year is considered the custodial parent and claims the child as a dependent. If there is no formal decree or agreement, then the custodial parent may give the non-custodial parent the right to claim a child as a dependent by signing IRS Form 8332.</p>
<p>A change in the law in 2009 allows a custodial parent to revoke that right by filling out part 3 of Form 8332. The form must be delivered to the non-custodial parent by Dec. 31 of the tax year prior to the tax year you want the change to take effect.</p>
<p>[New</a> Rules for Children of Divorced or Separated Parents](<a href=“http://www.irs.gov/formspubs/article/0,,id=207333,00.html]New”>http://www.irs.gov/formspubs/article/0,,id=207333,00.html)</p>
<p>[Child</a> Support and Taxes - Free Legal Information - Nolo](<a href=“Child Support and Taxes | Nolo”>Child Support and Taxes | Nolo)</p>
<p>I take the 1098-T tuition deduction</p>
<p>Thank you, that helps. As I said, he is a quick savy salesman and he beat me to filing ths year. i don’t think it matters though. He has no back-up for his claim. All school bills come to me, my son lives with me in the off season, his drivers license has this address, his paychecks come here. Our divorce decree is silent on this and from what i’m hearing, he’s my dependent.</p>
<p>Thanks, Huge help!!</p>
<p>Did not give anyhting up in divorce decred. Former husband does not take no for and answer and just takes what he wants; then gambles that I won’t have enough money to follow through in court. Wrong. thanks for your reply, you and others are consistent with answers that I researched myself.</p>
<p>You won’t need to follow up in court. the IRS will take care of it if he claims the child after you.</p>
<p>She said the ex had already filed and claimed the child as a dependent.</p>
<p>Can you contact someone at the IRS about this? Send in your taxes, and copies of all relevant court docs, etc, that show you are the custodial parent. Then, your ex can be reported for tax fraud. I would call the IRS, and at least start getting them curious from your questions. Some IRS agents can be very helpful.</p>
<p>I am the non custodial parent, I have been paying for all tuition (although decree states % split), I provided all healthcare, daughter has lived with me for past 2 years when home from breaks and summer. She cannot go to custodial parent because of her high allergy to cat. (cat won that one) Decree states custodial parent has tax deduction.
Daughter graduated in May 2010, I provided more than 1/2 her support and she lived with me more than 1/2 the time. All these facts fit the IRS guidelines, but the decree states the custodial parent. I’m hanging on the hope that she has been living with me physically and I have fully supported her.
Advise?</p>
<p>your son lives with you in the nonacademic year is equal to 4 months? </p>
<p>My mother-in-law lives with us 10 months of the year, but we don’t get to claim the deduction because SIL has taken the deduction since day 1. Most of the expenses are paid by the SIL, which is health insurance. Food and housing is not a great expense for us since we already have housing and food. SIL’s proof is greater than ours.</p>
<p>my business–take the exemption. If the decree is silent (and you said yours is), then the parent with the majority of custody gets the dependency exemption.</p>
<p>If ex has e-filed and already claimed S this year, and you try to e-file, yours will be rejected. This does not mean you cannot claim S. However, it does mean you will need to file a paper return rather than e-file. This coming summer, both of you will probably receive an IRS notice. The typical notice states that both of you have claimed S, and if you are entitled, you do not need to do anything. They also enclose a blank Form 1040X (amended return) and tell you to complete it if you were not entitled.</p>
<p>My recommendation–if you are entitled, take the exemption and the education credits. Your ex-H’s tax problem is HIS problem.</p>
<p>nextlevel, you said
</p>
<p>The decree is the governing document, which seems to give your ex legal custody. You can request a change by having your ex fill in form 8332 revoking his or her claim to the exemption, but your ex would have to agree with that. If you and your ex don’t agree, my guess is that it will be much more expensive to try to get the divorce decree modified (by going to court or mediation) than the gain that you’d get by claiming your daughter as a dependent on your taxes.</p>
<p>Vballmom, if this student has reached the age of majority, isn’t “legal custody” a moot point now? Surely the custody arrangement in the initial divorce decree isn’t meant to survive beyond that point and I can’t imagine people going to court to modify custody terms for a college student!</p>
<p>I guess it would depend on the state’s age of majority (18 or 21) as to when legal custody ends. Parents can claim children as dependents up until age 24 if they’re in college. I can’t find anything on the IRS website dealing with the age/divorce question.</p>
<p>It certainly seems that nextlevel has a reasonable claim to the exemption based on providing most of the support for the daughter. Maybe he/she should discuss this with an experienced divorce attorney.</p>