04 Feb Who Gets the Child Tax Credit After Divorce in Florida?
After a divorce, determining which parent is eligible to claim the child tax credit can become a point of confusion and sometimes conflict. For parents in Miami preparing for or going through a divorce, it is essential to understand that federal law (not Florida courts) ultimately governs who may claim the Child Tax Credit (CTC). The IRS rules override anything written in your divorce papers unless specific federal forms are completed correctly. This post explains how the Child Tax Credit works after divorce in Florida and how to protect your interests during a family law case.
What Is the Child Tax Credit in Florida Divorce Cases?
The Child Tax Credit is a federal income tax benefit authorized under 26 U.S.C. § 24. It is available to taxpayers with qualifying dependent children under 17 at the end of the tax year. In 2024, this credit is worth up to $2,000 per child. Of that amount, $1,600 may be refundable depending on income and other tax circumstances. The Florida Bar Journal confirms that the Child Tax Credit is tied to the dependency exemption under IRC § 151 and § 152.
Each child can only be claimed by one parent per year. As a result, divorced or separated parents often find themselves in disputes over which parent may claim the child. The answer depends not on court-ordered custody, but on IRS rules.
Federal Rules Determine Who Gets the Credit
Your divorce decree may allow you to claim your child for tax purposes. However, the IRS only allows the parent who meets the definition of “custodial parent” to claim the Child Tax Credit unless a specific release is provided. This rule is based on 26 U.S.C. § 152(e) and the regulations that follow.
The IRS defines the custodial parent as the one with whom the child lives for the most nights during the tax year. If both parents have equal overnights, the parent with the higher adjusted gross income (AGI) gets to claim the child. This is called the “tie-breaker rule.” It is outlined in Treas. Reg. § 1.152-4(d).
What Happens If the Child Spends Time With a Third Party?
If a child spends a night away from both parents, such as with a grandparent, the IRS will disregard that night. However, if the child would have stayed with one parent but for a temporary absence, such as military service, the child is treated as having stayed with that parent. This rule allows for fairness in special circumstances.
IRS Form 8332 in Florida Divorce Cases
Noncustodial parents can only claim the child tax benefits if the custodial parent signs and provides IRS Form 8332. This form must be unconditional, list specific years, and follow IRS rules. Courts cannot replace this form with an order or agreement.
The Florida Bar Journal emphasizes that even if your Florida court order says you may claim the child, the IRS will deny the credit without Form 8332. Since July 2, 2008, this has been the rule. Always attach the signed form to your tax return.
How Florida Law Interacts With IRS Tax Rules
Florida no longer uses the term “custody.” Courts award “parental responsibility” and define a timesharing schedule under Fla. Stat. § 61.13. These parenting plans may include language about tax benefits. But federal law controls the actual right to claim the Child Tax Credit.
The Florida Bar Journal makes it clear that divorce judges cannot override IRS regulations. So, even a detailed parenting plan won’t matter to the IRS without Form 8332.
Claiming the Credit With Equal Parenting Time
If both parents have 50/50 timesharing, the IRS applies a tie-breaker. The parent with the higher AGI will be treated as the custodial parent for tax purposes. That parent gets to claim the child and receive the tax benefits.
Even if a Florida parenting plan states the parents have rotating or equal custody, only one parent will qualify under federal law. Understanding this helps avoid disputes and ensures tax compliance.
Why Recordkeeping Matters in Miami Divorce Cases
In Litton v. Commissioner, T.C. Summary Opinion 2006-56, the IRS allowed a mother to claim her children based on her detailed day planner, which showed more nights with the children than her ex-husband. Even though the father had more time under the court order, the IRS based its decision on the actual number of nights.
This case shows that parents must keep accurate records of overnights. You can use a calendar, notes, or parenting apps. These records may be essential during IRS audits or court hearings.
Florida Courts Can Enforce Agreement to Sign IRS Form
If your ex-spouse refuses to sign Form 8332, despite a court order or parenting plan requiring it, you can ask the court to enforce compliance. Under Fla. Fam. L.R.P. 12.570, Florida judges can hold parties in contempt for violating court orders. The case Ford v. Ford, 592 So. 2d 698 (Fla. 3d DCA 1992), confirmed this authority.
However, if the IRS denies your credit due to a missing Form 8332, the Florida court can’t override that. You must resolve the tax matter separately and may only enforce the agreement going forward.
Can Parents Share the Child Tax Credit?
Many parents want to divide tax benefits after divorce. But IRS rules don’t allow this. The dependency exemption and Child Tax Credit must go together. Only one parent may claim both. You cannot split these benefits by agreement, court order, or informal arrangement.
This was the issue in Darton & Jacobs v. Commissioner, where a divorce allowed a parent to “buy” the exemption. Because Form 8332 was not submitted, and the other parent claimed the child, the IRS disallowed the exemption.
How to Revoke a Previously Signed IRS Form
A custodial parent can cancel a previous Form 8332. The revocation must be in writing and must clearly list the future years affected. It must be sent to the noncustodial parent and attached to the tax return claiming the child.
This rule, from Treas. Reg. § 1.152-4(e)(3), ensures fairness when circumstances change. If the revocation contradicts your parenting plan, you should ask the Florida court to update the agreement. A judge can consider factors like nonpayment of support when deciding whether to allow a parent to revoke their consent.
What Happens When Parents Make Too Much Money?
The Child Tax Credit phases out for high earners. In 2024, the phase-out begins at $200,000 for single filers and $400,000 for joint filers. The IRS will reduce your credit if your income exceeds these levels. Be sure to check current thresholds each year, as they may change with tax reform or inflation adjustments.
IRS Rules vs. Florida Agreements: What You Need to Know
The IRS does not care what your divorce agreement says unless the proper IRS forms are submitted. Federal tax law prevails over state court orders. This can cause confusion, but being proactive and informed will help you avoid problems.
For parents divorcing in Florida, including Miami-Dade County, it is essential to coordinate with both your family lawyer and your accountant or tax advisor to ensure all federal rules are met. Otherwise, you may lose out on valuable tax credits and face IRS penalties.
Key Takeaways on Child Tax Credits After Florida Divorce
- Only one parent may claim the Child Tax Credit each year.
- The IRS defines “custodial parent” based on the number of overnights.
- Equal timesharing defaults to the parent with the higher AGI.
- IRS Form 8332 is mandatory for the noncustodial parent to claim the credit.
- Florida courts can enforce agreements but cannot override the IRS.
Final Thoughts: Avoid Mistakes in Florida Divorce Settlements
If you are going through a divorce in Florida, make sure your Marital Settlement Agreement or Parenting Plan clearly addresses tax issues. Use the correct IRS forms and keep thorough records. These steps will protect your financial future and avoid disputes later.