Manassas, VA asked in Divorce and Family Law for Virginia

Q: Can I legally claim child on 2021 taxes and what is required to do so? I live in VA.

Divorce decree states ex claims child on taxes. Joint custody but ex never sees child and child lives with me 100% of the time. Child support terminates when child turns 18 or graduates which will both occur in June 2021. Since child turns 18, lives with me, and I will support fully for 6 months can I legally claim child or do I need to go to court to do so? What happens if ex also claims child? Does the law back him per the divorce decree regardless of who provides the most support during year? What if I had email from ex saying he would not claim her, would law back me then if he went against his email and claimed her? Do I need to go to court to solve this?

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1 Lawyer Answer
Michael Christopher Miller
Michael Christopher Miller
  • Vienna, VA
  • Licensed in Virginia

A: The tax deduction can either be a part of child support or a part of custody. The custody provisions in a court order expire when a child turns 18 years of age. The support provisions also end upon age 18 unless the child remains in high or has a disability. So, in your circumstance, arguably, the custody and support provisions in the divorce decree have expired due to your child's emancipation.

Whether you can claim you child as a dependent is now determined by IRS rules.

If both of you claim the same child, in a few years, the IRS will send you notices that there is a conflict in your returns. Whoever filed improperly will have to refile with potential interest, penalties, etc.

The IRS has Form 8832 to address situations similar to this.

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