Filing taxes can be a difficult task under normal circumstances. However, in the case of a couple in the process of divorce, a couple recently divorced, or a couple that is legally separated, filing taxes is even more complicated. In addition to talking to a tax professional, you may want to also seek advice from your divorce attorney.
There are currently five filing options in the U.S., which include:
- Filing Single;
- Married filing jointly;
- Married filing separately;
- Head of household;
- Qualifying widower with dependent children.
Deciding which filing status you fall into depends on several things.
Your marital status. Whether you were married, separated, or divorced on the last day of December determines what your marital status is for tax purposes for the year. You cannot file jointly if your divorce was finalized on or before December 31.
Your divorce has not been finalized. In the event your divorce has not been finalized, you have the option to choose to file:
- Married filing jointly
- Married filing separately
Legally Separated. U.S. Code § 7703 (a) (2) states that, if you are legally separated from your spouse “under the decree of divorce or separate maintenance,” you are not considered married and may file as single
The IRS has very strict requirements in order to meet the “legally separated” standard. You should confirm your status with a qualified Columbus divorce attorney.
What you need to know about filing separately from your spouse during divorce
Filing separately can be a good idea in certain instances. If your soon to be ex-spouse has past or present legal problems, tax problems, or credit problems, it may be better to file separately.
When you file jointly, each of you is 100 percent responsible for the representations made in the tax filing. If you think your spouse might fail to report all his or her income, you would share the responsibility for the income that was not reported, along with subsequent tax liabilities. Alternatively, if you are worried about your spouse’s tax debts, you can avoid this issue by filing separately.
Taxes and Divorce With Children
You and your spouse must have a conversation about your children if you decide to file separately. Both of you cannot claim the children as an exemption. However, one of you should claim the children.
Additionally, one of you should claim the childcare credit, if eligible. You both will need to work out who claims the exemption, assuming it was not addressed in the legal separation documents.
The IRS allows you to deduct a part of the fees you pay related to tax advice. Fees can include fees spent analyzing how your pending divorce might impact your tax obligations.
Sometimes, you may be better off filing jointly. Other times, married filing separately is the best option. In some cases, the single designation makes the most sense. You need to consult an experienced family law attorney like Tyler Moffit, to ensure you receive your fair share of tax return monies or taxes to be paid.
Tyler Moffitt is a Family Law and Criminal Defense Attorney who practices Carrollton, LaGrange, and Columbus, GA. He graduated from John Marshall Law School, and has been practicing for several years now. Tyler Moffitt takes great honor in defending the accused. Learn more about his experience by clicking here.