Frequently Asked Questions about Divorce and Taxes

How do you file my taxes after you get divorced? Am I married or single?

• If you have received the final divorce decree by the last day of your tax year, then you are considered unmarried for the entirety of that year. The same applies for those who have received a separate maintenance (legal separation); if it is received before the last day of your tax year, you are considered unmarried for the whole year. As an unmarried person you can file under: single, or head of household or qualifying widow(er) file status, if applicable requirements are met.

Do I have to file taxes with my husband or wife if we are separated?

• As a married person, unless you have obtained a divorce decree of legal separation by the last day of your tax year, you must file as either: married filing jointly or married filing separately. However, if you live apart from your husband or wife, under certain circumstances you may be considered unmarried and can file under head of household status.

How do I file taxes if the divorce is not finalized?

• If you have not received a final divorce decree by the final day in the tax year, the IRS considers you to be married for the entire year. As a married person, you have two choices to file under: married filing jointly or married filing separately. You may not file as single or head of household.

Should I file head of household in the year I file for divorce?

• Filing head of household may provide some advantages to filing as single or married filing separately: your standard deduction is higher, tax rate is usually lower, and you may be able to claim certain credits (dependent care credit and the earned income credit) otherwise unavailable. However, you should only file head of household in the year you file for divorce if you obtain a final divorce decree from the state by the final day in the tax year. Otherwise, you must file as married filing jointly or married filing separately.

Who can claim children as dependents?

• Before you can claim a child as a dependent, be sure that they meet the qualifying child tests. Here are the requirements:
• The Relationship Requirement––The child must be your son, daughter, stepchild, foster child, brother, sister, half-brother, half-sister, stepbrother, stepsister, or a descendant of any of these people
• The Age Requirement––– The child must be under the age of 19 at the end of the year (and younger than you). There are two exceptions to this rule:
  1. You may claim a child as a dependent who is under the age of 24 at the end of the year if they are a student; or
  2. Any age if that person is permanently and totally disabled
• Residency Requirement––– The child must have lived with you for more than half of the year (there are exceptions which exist for children of divorced or separated parents who live apart)
• Support Requirement––– The child must not have provided more than half of his or her own support for the year
• Qualifying Child of More Than One Person––– This is usually applicable to children of divorced parent. You must use the IRS “tie breaker rules” to determine which parent may claim the child as a dependent in the case that both otherwise qualify to do so (See page 11 of IRS Publication 501 for the tiebreaker rules).

What is the tax treatment of alimony and child support?

• Alimony is a payment made to a spouse who is entitled to receive that payment under a divorce or separation agreement. For this reason, any voluntary payments that are not made under a divorce or separation agreement would not count as an alimony payment. Additionally, a payment under such an agreement can only be considered alimony if the spouses do not file a joint return with each other and the following requirements are met:
  • The payment is in cash (debit is acceptable too);
  • The agreement does not designate the payment as not alimony;
  • The spouses are not members of the same household at the time payments are made (only applicable if the spouses are legally separated under a decree of divorce or a legal separation agreement); and
  • The payment is not treated as child support

Prior to the Tax Cuts and Jobs Act of 2017 (TCJA), alimony payments were deductible from the income of the payer (excluded from the alimony-payer’s taxable income). However, the recipient (present or former) spouse would then be required to include the payment as taxable income. On the other hand, the party who pays child support is not able to deduct the child support payments from their income and the receiving party does not include the payment in their taxable income.

TCJA has essentially reversed the stage at which tax is collected for alimony, making its tax treatment just like child support.  Alimony payments are no longer deductible to the payer (so they are included in taxable income of the alimony-payer), and the alimony payments are no longer included by the recipient as taxable income. This is in effect as of January 1, 2019.

Although the tax treatment for child support has not changed (meaning alimony and child support are treated the same), there has been another tax change which parties to child support agreements may find significant. The Tax Cuts and Jobs Act has done away with personal and dependent exemptions. This may be relevant to your situation if your existing agreement or order contains a provision which establishes which parent may declare minor children as personal/dependent exemptions on their tax returns, as many do. As of January 1, 2018, these provisions in your agreement no longer matter. Regardless of which parent gets the right in the agreement, neither parent will be able to declare any children as exemptions on their federal return because as of January 1, 2018 due to the elimination of personal/dependent exemptions.

What is the taxability of property transferred in a divorce?

• Under Chapter 26 U.S. Code §1041, no gain or loss will be recognized on transfers of property between spouses or incident to divorce. In other words, a transfer of property relating to divorce can generally be completed tax-free. That said, the Code restricts transfers that are “incident to divorce” to mean (1) the transfer occurs within 1 year after the date on which the marriage ceases, or (2) the transfer is related to the cessation of the marriage.

In practice, this means that if the transfer takes place within a year it is tax-free no questions asked. If the transfer occurs at some point past the year marker (but before the divorce’s six-year anniversary), you are not completely out of luck; however you will likely have to jump through some evidentiary hoops to prove that the transfer was related to your divorce. This means that if the transfer was not included in your divorce agreement, you may need to modify it to avoid tax liability if the transfer occurs between the first and sixth anniversary of divorce. After six years, a tax-free transfer is not totally impossible but considerably more difficult because there will now be a presumption working against you that the transfer of property has nothing to do with the divorce. At that point, there really must be extenuating circumstances such as business or legal disputes relating to the property which explain why the transfer could not occur sooner.

Can I deduct my legal fees for a divorce? What if part of it has to do with my business?

• Legal fees for a divorce are considered a personal deduction. The Tax Cuts and Jobs Act eliminated personal deductions for 2018 through 2025. Although the eliminating provisions will “sunset” (go away) at the end of 2025. Until then, you cannot deduct legal expenses for your divorce, even if a result of the legal proceeding is the loss of income-producing property.

What is community property and how does it impact my tax filings?

• Community Property is a concern for married individuals who are domiciled in a community property state. Although there could be a distinction between where you are domiciled and where you currently live, for many individuals the two are one in the same. Community property affects a married person’s rights and interests in property under state law. Community property can generally be described as all property acquired during marriage that is not otherwise established as separate property. Each spouse has a 50% interest in community property, without regard to who acquired the asset or income deemed that falls under the community property estate.

This is in contrast to separate property. Separate property is generally defined as property acquired before marriage; or during marriage through gift, inheritance, or an award for personal injury damages.  These are not hard and fast rules, and we strongly recommend that you look to your state’s laws or speak to qualified counsel for advice on the characterization of property.

Whether property is characterized as community or separate has significant implications on how you must file your taxes, if you married filing separately. Spouses may have both community and separate property, respectively. To complicate matters a bit further, a single item of property may contain an interest that is owned by the community property estate and an interest that is owned as separate property. Because assets can change from separate property to community property under certain circumstances, it may be difficult to figure out how to report any income earned or asset appreciated under community property. In order for each spouse to report and pay their share of tax liability, you will need to determine exactly what interest each person has in the property.

For spouses filing a joint return, whether property is characterized as community property is less significant. This is because spouses who file a joint tax return are joint and severally liable for the tax on all of the income reportable, regardless of whether it is community property or separate property. Because this means that your own personal assets could be used to pay the entire liability stemming from a joint return, you may want to take this into consideration when deciding whether to file jointly or separate. 

How are retirement accounted treated for tax purposes in a divorce? (Pub. 504)

• Retirement plans can be a complicated topic, due to what some consider legislative oversight on the penalty consequences resulting from a mandatory family court order to access retirement funds in order to pay a former spouse. Additionally, there are community property issues at play if the working spouse had funds in their retirement account before getting married and continued to accumulate funds in the account after marriage. In that case, part of the account may be separate property, whereas the rest may be considered community property; or all may be considered community property depending on the circumstances (for example, some event triggered “transmutation” or change of the separate property to community property).

Following the letter of the law, there may be penalties involved in accessing these funds early, even in compliance with a court order. The IRS has recognized the unfairness, and have given out Private Letter Rulings (PLRs) which have helped taxpayers who would have otherwise taken a large hit on their hard-earned retirement funds. Technically, PLRs are not supposed to be a source of authority to rely on. However, there have been quite a few on this topic which may give a taxpayer in this position room to avoid the penalty. Because of the grey area involved, we strongly suggest you seek experienced counsel to guide you through the process.

How are property transfers treated in a divorce? (Pub. 504)

• Property transfers between a spouse or former spouse relating to divorce, is generally treated as a gift. There is no recognized gain or loss, which means no tax liability in most cases. Although you must still report the transaction on a gift tax return. However, there are specific restrictions as to what qualifies as a transfer related to divorce. You should always try to complete the transfer within 1 year of obtaining the final divorce decree, unless there are extenuating circumstances which prevent the transfer; such as litigation with regard to the property, for example.

What happens to tax debt in a divorce?

• If the tax debt stems from a joint return, the IRS can pursue either spouse or both for the entire amount owed. Under certain circumstances, you may qualify for relief. Options for those who qualify may include relief from all or some of the liability. Alternatively, you may be eligible for allocation or separation of liability in some cases so that you may only be responsible for your share of the liability. For further information, take a look at our guide for managing tax liability incurred before or after a divorce.

What happens if we owe taxes while getting divorced and my husband or wife stops paying?

• Tax liability stemming from a joint return has joint and several liability. In other words, the IRS could hold you responsible for taxes, penalties, and interest resulting from the joint return. You may however qualify for relief under the Innocent Spouse Statute, Allocation of Liability provision, or Equitable Relief provision. Refer to the above article, or reach out to schedule a consultation with Senior Counsel at Brotman law for further assistance with your tax issue.

I suspect that my spouse cheated on our tax returns while we were married. How do I handle this now that we are getting divorced?

• Cheating on tax returns can potentially lead to criminal fraud charges. Because the liability under a joint return is joint and several, you may face charges as well depending on your level of knowledge, or what the IRS determines you should have known regarding your spouses actions. If you suspect your spouse is involved in tax fraud, it may be wise to reach out to an experienced tax attorney as early on in the process as possible. A tax attorney may give you peace of mind, or lessen your vulnerability to liability or criminal charges stemming from your spouse or former spouse’s actions.