According to the IRS a minor child must live in your house for a period of at least 6 months to be claimed as a dependent. It also states only one person can claim a child as a dependent. I am the grandfather of a child that had resided in my house hold since birth . My Daughter recently divorced her husband and in the agreement they alternate claiming the child she claiming the child odd yrs. He on even yrs. I already met the IRS requirements before the agreement was finalized on Dec. 9th. The agreement states only the altering yrs. With no mention of past or present yrs. He does not meet the IRS requirements for this yr.for the child spent only 3months of his visitation rights in his home. He is claiming her as a dependent for this yr. Knowing that I am claiming the minor child.
You have an interesting situation taxwise. The issue here is that, assuming you are in fact entitled to claim the child under the dependent exemption rules, then two alternatives present themselves:
(1) if either one of them also qualifies to claim the exemption - e.g., your daughter - then you would have to go to the tie-breaker rule which, if I recollect, gives the exemption to the individual with the higher income.
In that case, if you had the higher income, then you would get the exemption and your daughter would not, which in turn would mean that she had nothing to relinquish to her ex-husband and thus, if he does not independently qualify, he shouldn't be allowed to claim the exemption.
Otherwise, if your daughter had the higher income, then she would be entitled to the exemption, not you, and according to the divorce decree, she would have to relinquish that exemption to her husband.
(2) if neither one of them qualifies to claim the exemption, then - assuming you do - you would be entitled to the exemption and neither of them would. In that case, he couldn't claim the exemption and your daughter would have nothing to relinquish to him, and so you would be able to claim it.
What makes this situation a little interesting is that the divorce decree doesn't appear to take into account the situation where neither parent can individually qualify and thus neither parent can relinquish the exemption to the other. Further, the IRS is not bound by a state divorce decree and therefore cannot be forced to allow the exemption to one or the other of them simply because the divorce decree says that one gets it for a given year.
At any rate, I would recommend you consult with a tax professional first to make sure that you really do qualify to claim the exemption and, to the extent you know the facts, whether or not either of them also qualifies.
My answer does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This disclaimer is intended to be fully compliant with the requirements of Treasury Department Circular 230 and the terms thereof are fully incorporated by reference.
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