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Taxes and Divorce

A new meaning to Yours, Mine, and Ours.
The decision to file for a divorce is generally a choice made after considerable thought and deliberation. While there are various reasons why a person may decide to end his or her marriage, once the decision is made, it is important to consider the numerous ways in which the end of your marriage will affect other aspects of your life, including how it will affect you financially. Both a support order and the disbursement of marital assets can have implications for your tax status. If you intend to seek a divorce, you should retain an experienced divorce attorney to develop a plan to deal with the tax ramifications of the dissolution of your marriage.

If you intend to seek a divorce, you should retain an experienced divorce attorney to develop a plan to deal with the tax ramifications of the dissolution of your marriage.

Tax Implications of Support Obligations

Under federal law, you must report all income when you file your tax return. Child support is neither taxable as income for the parent receiving the support payments nor deductible from gross income for the parent making payments, no matter how many children are included under the support obligation. Conversely, traditionally spousal support has been taxable as income to the party receiving support and deductible from gross income for the party paying support. Recent changes in the federal tax law, however, provide that spousal support paid pursuant to any divorce finalized after 2018 will be neither taxable as income to the payee nor deductible from the gross income of the payor.

Filing Tax Returns

You cannot file a “joint” tax return for a year in which you were divorced. Therefore, it is important during tax planning in divorce to decide whether your spouse and you will file taxes jointly or separately. If you file separately, you will be solely liable to the IRS for your individual tax obligations, as opposed to also sharing responsibility for the tax obligations of your estranged spouse. Filing separately can come with the disadvantage of being taxed at a higher tax rate, however, and it may prevent you from claiming certain deductions.

If you and your spouse have a child, it is also important to determine who may claim the child as a dependent on his or her tax return. If you cannot agree, and there is no court order providing who may claim a child as a dependent, generally the parent who has physical custody of the child for the majority of the time may claim the child.

Tax Implications of the Distribution of Marital Assets

If your spouse and you jointly own property, such as real estate, there are generally no tax consequences if one of you transfers the property to the other, pursuant to your divorce agreement. If you are going to sell the marital home, it may be beneficial to do so prior to the finalization of your divorce, since most married couples are eligible for a greater capital gains exclusion than single individuals.

If your spouse and you are dividing retirement funds from a 401K or pension, whether and how the funds will be taxed depends on the manner in which they are distributed. In most cases, it is important to have a qualified domestic relations order to define each party’s tax obligations and prevent you from needing to pay taxes in connection with the division of the retirement plan.

If you have decided to end your marriage, you should confer with an experienced divorce attorney to determine the tax ramifications of divorce.

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