Tax Planning Related to Divorce

By Lisa Cremonini, MBA, CFP

After the festivities of the holidays, we enter a new season of giving and receiving known as tax time. We wait patiently for the mailperson to deliver our W2′s, and 1099′s. We gather our paperwork in order to calculate itemized deductions, capital gains, losses, alternative minimum tax just to name a few. To some this may sound very familiar but to others, especially those going through divorce it is very foreign. Divorce is a time of emotional turmoil, but it’s also a time of financial upheaval. The financial change brought about by divorce can be particularly devastating to families with children and to older couples who have assigned the career duties to one spouse and the homemaking duties to the other.

This is the first in a series of articles which will touch upon some of the tax issues you need to be aware of as you consider or proceed through the divorce process. Part one will address filing status, and future articles will review tax ramifications of alimony, property settlements, child support and dependency exemptions.

Filing Status Considerations

Your filing status is important because it determines (in part) the deductions and credits available to you, the amount of standard deduction that you may be entitled to, and your correct amount of tax. Depending on your situation, you may or may not have a choice regarding your filing status. Generally speaking, there are four filing statuses available to individuals who are divorced or are considering a divorce: single, married filing jointly, married filing separately, and head of household.

Thorough familiarity with the concept of filing status also involves some understanding of the innocent spouse rules, as well as divorce timing considerations.

For filing status purposes, when are you considered married or unmarried? 

Your selection of a filing status for a given year will depend on your marital status as of the last day of your tax year (usually December 31).

Divorce and separate maintenance decrees

You’re considered unmarried for the entire year if, on the last day of your tax year (usually December 31), you’re unmarried or legally separated from your spouse by a divorce or separate maintenance decree. You’re still considered married if you’re separated under an interlocutory (not final) also known as a temporary order decree of divorce.

If you and your spouse obtain a divorce solely for the purpose of filing tax returns as unmarried individuals (with the intent to remarry) and you remarry the same individual the following tax year, you and your spouse will be treated as if you were never divorced.

Legal annulments 

If you obtain a court decree of annulment (which holds that no valid marriage ever existed), you are considered unmarried for the tax year, provided that you have not remarried. You must also file amended federal income tax returns (IRS Form 1040X) for all tax years affected by the annulment (if not barred by the statute of limitations). These returns should amend previously filed tax returns to single (or head of household, if you qualify) filing status. The statute of limitations generally doesn’t expire until three years after your original return was filed.

Married persons living apart 

Generally, if you live apart from your spouse but are not legally separated by a decree of divorce or separate maintenance, you’re still considered married. However, if you meet all of the following requirements in addition to living apart from your spouse, you’re considered unmarried for the entire year:

  • You file a separate return (meaning that you don’t file jointly),
  • You paid more than half the cost of keeping up your home for the tax year,
  • Your spouse did not live in your home during the last six months of the tax year, and
  • Your home was, for more than half the year, the main home of your child, stepchild, or adopted child, whom you can claim as a dependent. This qualification is also met if your home was the main home of a foster child (whom you can claim as a dependent) for the entire year.

If you’re considered unmarried under the above requirements, you probably will qualify for head of household status.

What filing status should you select?

Taking into consideration that marital status is determined on the last day of the year (December 31), the following rules will apply:

Single 

You must select single as your filing status if you were unmarried as of the last day of the tax year and were not eligible to claim head of household, or qualifying widow(er) status.

Head of household 

The head of household rules vary, depending on whether you’re single (including divorced) or married.

If you’re single:

  • You must provide more than one-half of the costs of maintaining your household, and
  • Your household must be the principal home of at least one dependent.

If you’re married:

  • You must file a separate return,
  • You must maintain your home and have your child or stepchild living there for more than one-half of the tax year,
  • You must claim the child as a dependent or waive that claim,
  • You must furnish more than one-half of the cost of maintaining the household during the tax year, and
  • Your spouse must not have lived in your household at any time during the last six months of the year.

Married filing jointly

If you can put aside your differences, married filing jointly with your spouse can be the most advantageous filing status. You and your spouse (or former spouse) can choose to file a joint return if you were married to each other through the last day of the tax year, even if you were living apart. If living apart, you can’t file as married if you are legally separated under a final decree of divorce or separate maintenance. You can, however, file as married if you are separated under an interlocutory (not final) or temporary order decree of divorce.

Married filing separately 

You can select married filing separately as your filing status if you’re married or if you’re no longer married but had remained married to your former spouse up to and including the last day of the tax year (December 31). If you and your spouse are unable to agree on which filing status to select, you should file separately. This is because your two separate returns can be amended later (if necessary) into a married filing jointly return. The opposite is not true, however; you can’t subsequently amend a joint return into two separate returns.

What other filing status considerations should you keep in mind? 

You should know how the timing of your divorce can impact your tax liability. Also, joint filers should be aware of the rules for innocent spouse relief.

Timing of divorce 

If filing as married individuals (either jointly or separately) would be more beneficial than each of you filing as single, consider delaying a divorce until after the end of the tax year. Conversely, finalizing a divorce before the end of the tax year will allow both of you to file as unmarried individuals; that is, as single or, if one of you qualifies, as head of household. If you desire to file as a single individual, also, consider obtaining a decree of separate maintenance before the end of the tax year. This will also allow you to file your tax return for the year as an unmarried individual. You might want to run the numbers to see which filing status is best for you.

Innocent spouse relief 

If you file a joint return, each spouse is generally jointly and severally liable for 100 percent of the taxes due on the return (as well as for any penalties and interest assessed). Even after your divorce is finalized, you will be liable for any unpaid taxes attributable to prior years unless you qualify for relief as an innocent spouse. If you’re going to file a joint return while in the process of a divorce or separation, consider utilizing an indemnification clause or an escrow arrangement as a way of protecting yourself from future liability. An indemnification clause is a clause within a divorce decree that states that one spouse agrees to reimburse the other for future tax liabilities. An escrow arrangement can be used to set aside funds for estimated future taxes that will be due as the result of a joint return. The IRS doesn’t care whether you have an indemnification clause or an escrow arrangement. The IRS can still collect any tax deficiency from either you or your former spouse.

There are so many areas to consider when one is seeking a divorce. The intent of this series of articles is to familiarize you (not make you an expert) with the income tax implications of your divorce-related financial decisions. By gaining some knowledgeable about these areas, you will be able to make informed decisions before signing the divorce agreement.


Lisa Cremonini is a Certified Financial Planner in Natick, Massachusetts. She received her MBA from Babson College. She specializes in comprehensive financial planning for individuals and small business owners. Lisa is trained in mediation. She has been involved in financial services for 18 years. Lisa is a Registered Representative of Commonwealth Financial Network, Member NASD/SIPC. Lisa can be reached at LCremoniniPlans@msn.com

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