Emancipation and Taxes

Does anyone know if a child is emancipated by his father through a court, can his father still claim him as a dependent on taxes? I pay for most of my son’s college and living expenses. His father pays no support and gives my son about $3,000.00 a year. I am paying about $15,000.00 a year for my son to live and go to school plus other expenses like food, insurance, gas, etc. My son does work some part-time to help too. I claimed him on taxes and my ex said that he is suing me because I am in contempt of the divorce decree agreement. It reads, “Children shall be rotated until they can no longer be an exemption.” To me, this means that my ex-husband emancipated my college son and that my son is no longer part of this agreement. This is why I listed him and one of the minor children as dependents on my tax returns. My college son also filled out the FAFSA and listed me as his provider. My other two minor children are still part of the agreement and he pays support for them so they are rotated every other year. I would rotate my college son along with the other two if his father divided expenses 50/50 even though he is no longer part of the agreement… My ex makes two times what I do in a year and does not pay anywhere near what I do. I even took on an extra job. Any ideas?

I’m not sure emancipation is the correct term for this situation; I thought it meant not receiving help from either parent. i think its time to ask someone who knows.

This was posted in the forum about Chicago issues, but I think it will get better responses in the General Questions forum. Hence, I’m moving it.

If the issue is claiming him as a dependent, you win. Barring any contrary agreement, the exemption is claimed by the person who provides for more than 50% of the support.

The issue is that there already is a contrary agreement. Unless the divorce decree agreement has other language than what the OP provides, it would appear that the ex-husband has the right to claim the dependent exemption on alternating years. The IRS dependent rules are subservient to terms of a divorce agreement. Unless the agreement stated more regarding the issue than she provided, who provided what % of monetary support for the child does not matter.
They will need to keep alternating the dependency exemption until the child either files a return claiming himself or until he is no longer eligible under the IRS rules to be deemed a dependent by anyone.

No they aren’t. Which is why the ex would need to sue for a violation of the decree.

Does “emancipated by the father through the court” mean the father went to court to get the son decreed as no longer his dependant? If the son is not his dependant, then he has no case… unless the lawyer pulled a fast one, and the agreement says “children” not “dependent children” for the rotation clause. If so, perhaps you should contest the decree as not being in good faith, or that “children” does not include empancipated adults.

Whether that overrides the IRS rules - that’s something to ask the IRS or a tax lawyer.

First , what does the decree actually say? This

doesn’t sound like a direct quote to me, and even minor differences in wording can have a big difference in meaning. That quote actually does sort of say that the children are to be rotated until they no longer qualify as dependents and has no other end point. Not when support obligations end, not upon graduation from college, not when they are 40 years old if you are still supporting them. There almost has to be something more in the decree.

Second, speak to a lawyer. I assume by “emancipated by the father through the court” you mean that your ex-husband went to court to end his support payments. I can’t imagine why the decree would say the exemption rotated even after support obligations ended , but I suppose it could have been poorly drafted.

I think we are saying the same thing. In a court of law, a legally binding divorce agreement regarding claiming the dependency exemption on a rotating schedule takes precedence regardless of which parent provides more than 50% of the child’s support each year or the child’s living arrangements, unless the agreement is no longer valid due to any number of reasons such as support no longer being paid by one parent if that was written into the divorce agreement.

Of course, the IRS does not usually have access to the divorce agreement, so whichever parent files a return first claiming the dependent will get the exemption until a court steps in to overrule it if it was claimed erroneously.

The court might not be able to “overrule” the IRS on this. There are several rule changes over the last few years regarding dependents, all of which tend to say that divorce decree has no relevance.

It’s also my experience that a large minority of divorce decrees are clearly written by people who don’t know the first thing about tax rules. I have seen statements about the division of children, assets and tax benefits that would not have been legal under any version of the tax code from the last 25 years.

What the court could do is order damages to be paid (such as compensation for the lost tax benefit) so that the divorce settlement comes out even in dollar terms, but I’m not sure how often this is really enforced.