Dependency Exemption Custodial Parent In Florida
After Congress passed the Tax Reform Act, authority split nationwide on whether the act prohibits state trial courts from awarding the dependency exemption to a noncustodial parent directly or indirectly. See Landenwich, supra, at 901.
Some state trial courts would order the custodial parent to sign a release under threat of contempt. See id. at 914. Others ruled that federal law preempted the issue and the state court had no jurisdiction regarding the issue. See id. at 902-903, 917-18. the majority view nationwide now holds that the Tax Reform Act does not prohibit state courts from ordering the custodial parent to execute such a release. See id. at 902.
In Florida, this court and the First District joined the minority view. See Pearce, 633 So. 2d at 35; Holley, 547 So. 2d at 192-93; McKenzie v. Kinsey, 532 So. 2d 98, 99-100 (Fla. 1st DCA 1988.)
Other Florida courts accepted the majority view and agreed that the trial court could order the custodial parent to sign the release. See Fenner v. Fenner, 599 So. 2d 1343, 1345 (Fla. 4th DCA 1992); Ford v. Ford, 592 So. 2d 698, 699 (Fla. 3d DCA 1991).
In 1993, the Florida Legislature attempted to resolve this conflict by adding subsection 61.30(i) to the child support guidelines, effective July 1, 1993. See Ch. 93-208, Laws of Fla. the new subsection states that in awarding child support, the trial court may consider "the impact of the Internal Revenue Service dependency exemption and the waiver of that exemption." Id.
The language specifically provides, "The court may order the primary residential parent to execute a waiver of the Internal Revenue Service dependency exemption if the noncustodial parent is current in support payments." Id.
Accordingly, subsection 61.30(i) authorizes Florida trial courts to exercise this discretion, when appropriate, under the circumstances of a particular case.
Since the effective date of this subsection, Florida decisions have allowed trial courts to order custodial parents to execute the release, although many of the opinions do not refer specifically to section 61.30. See, e.g., Robertson v. Bretthauer, 712 So. 2d 1140 (Fla. 3d DCA 1998); Vick v. Vick, 675 So. 2d 714 (Fla. 5th DCA 1996); Griffin v. Griffin, 665 So. 2d 352 (Fla. 1st DCA 1995); Parker v. Parker, 655 So. 2d 233 (Fla. 1st DCA 1995).