Child Tax Credit - Divorced

[AndreaS227]

I just got divorced this past year. For the 2023 taxes, I got to claim the child tax credit and I am told that next year my ex will be the one doing so despite my child living full time with me. Does it work like that? I simply cannot claim it despite having her 100% of the time? 

Thank you!

[xmasbaby0]

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 17.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

[AndreaS227]

Yes, I am the custodial parent and I do not recall signing anything. There is a clause in our divorce papers that mentions how I can claim child tax credit on odd years and he can on even years. 

[xmasbaby0]

The IRS does not enforce or care about your divorce papers.  The IRS cares about physical custody.   

[chines2]

Good Evening,

@xmasbaby0's response is spot on, but I will add a slight caution.  If this agreement had been put in place prior to 2009 the results would be different in that in a pre-2009 divorce decree, separation agreement, or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

However, this does NOT mean that the custodial parent can ignore any decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt, so this is something to keep in mind.

Full rules regarding who can claim can be found in IRS Pub 501.  Hope this helps.

**Say "Thanks" by clicking the thumb icon in a post
**Mark the post that answers your question by clicking on "Mark as Best Answer"

[xmasbaby0]

From the original post:

"I just got divorced this past year."

[chines2]

Hi @xmasbaby0 ,

I note the divorce timing, but the thrust of my addition to your response was to caution the taxpayer that a court order should not simply be disregarded.  While she will likely ultimately arrive at the conclusion you provided, she should not be instructed to ignore a court order under any circumstances, and should consider all consequences in doing so, and make an informed decision about doing that before proceeding.

Thanks so much for your active participation, strong handle on tax knowledge, and contributions to the Community.