Legal Matters: Three Tax Questions Every Divorced Person Needs to Ask

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By Elizabeth Billies

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They say that there are only two things for certain in life: death and taxes. Well, maybe more like tax questions.

Taxes present unique challenges for divorced or separated persons. You may be saying, challenges for divorced people? What else is new? I know, I know. However, the failure to answer these divorce tax questions correctly could cost you big bucks. So what are they? In particular, I find that I am constantly asking (and answering) these three divorce tax questions each tax season:

  1. What is your tax filing status?
  2. Who is claiming your children as dependents?
  3. Is your alimony check taxable or tax deductible?

Divorce Tax Question #1:

What is your tax filing status?

Failure to claim the correct tax filing status is probably the most significant error I see separated people make on their tax returns. Actually, it is so prevalent I’m surprised that more people don’t get audited for it by the IRS.

There are four tax filing statuses: single, married filing jointly, married filing separately, and head of household. So, how do you answer this tax question and pick the correct filing status for you? Think of it this way: Whatever your marital status is as of Dec. 31 (i.e. the last day) of the tax year determines your filing status.

Want a real-life example?

Bob and Sue got divorced on Nov. 22, 2022. Therefore, they are not married to each other (or anyone else) as of Dec. 31, 2022. As such, they cannot file a tax return as a married couple because they are, you know, not married.

Okay, that was an easy example. So let’s try a harder one. And the one that I see the most.

Bob and Sue decided they wanted a divorce on Nov. 22, 2022, and consider themselves separated. However, they are still legally married as of Dec. 31, 2022. Does being separated as of Dec. 31, 2022, allow you to file single on your tax return?

NO!!! You are still married. Therefore, single is not a tax filing status they can use because they are, you know, not single!

While this may seem like a no-brainer to some, I see many clients get the answer to this tax question wrong and file their taxes as a single person. Perhaps it is not caught because their spouse does the same. Regardless, it is not correct and creates a potential tax problem you don’t want.

When you are married, your tax filing options are head of household (if you can meet certain requirements), married filing jointly, or married filing separately. Choosing whether to continue to file joint tax returns with an estranged spouse or to file your tax return separately is a strategic question that you should discuss with your accountant, lawyer or financial advisor.

Start working on your taxes early so you have time to consult with your advisors and decide the best tax filing status for you and your divorce case.

Divorce Tax Question #2:

Who is claiming your children as dependents?

If claiming the wrong tax filing status is the common error I see, who claims the children as dependents may be the biggest tax question that I see divorced couples fight over. Why? Because they don’t understand the rules regarding claiming children as dependents when you are divorced.

Remember, only one parent can claim a child as a dependent at a time. While the Tax Cut and Jobs Act of 2017 eliminated the dependency exemption, certain credits are still available to the parent who claims a child as a dependent on their tax return.

So, how do you answer this divorce tax question? The IRS has created some guidelines to help divorced parents deal with this tax question. Under those rules, the person who has primary custody of the children is the parent who can claim the children on their tax returns. If the parties have shared (50/50) custody, then the person who can claim the children is whichever parent has the higher adjusted gross income (AGI).

However, parents can agree to an alternate arrangement regarding who can claim the kids. In general, I see parents decide to split the dependency exemptions evenly or alternate if there is an odd number of children. This agreement is usually confirmed in a Property Settlement Agreement or child support order.

Now, what do you do if you and your co-parent agree to divide the dependencies, but your co-parent violates this agreement and claims all or some of the wrong children? Or what if you have never discussed this issue before, and both of you claim the same kids?

First, before a tax return is accepted, the IRS scans for duplicate claims of children via their social security numbers. So, if you file your taxes after your co-parent and they have claimed the same children as you, your return will not be accepted. You will then have to either send in your return via mail or contact your co-parent to get them to amend their return to remove the wrong children so that you can then refile your return.

Sounds like a mess? It is. Therefore, it is crucial that you and your co-parent discuss who will claim which children well before tax season starts and get that agreement in writing.

Why is having an agreement on who is claiming the children so important?

You don’t want to run out of time and incur late fees and interest because you delayed filing your return to fix/determine who is claiming the children. Or, perhaps worse, you pay more in taxes than you should because you were forced to give up on the situation to get your taxes filed on time.

How can a written agreement on dependencies help you with this tax question?

Having a clearly written agreement on which parent claims which child will alleviate many of these issues. Most people will abide by an agreement, particularly if it is made a court order. Also, some people just forget which kid they are supposed to claim, resulting in an honest error. Having it written down to remind them helps to avoid that confusion.

What can you do if your co-parent violates the agreement?

If the other parent violates the dependency agreement, you can address their violation with family court. Notice I said family court and not the IRS. The IRS will not arbitrate this dispute for you. This can be frustrating because it may result in your tax return being delayed or filed without the proper dependencies. Again, you must deal with this issue well before the tax filing deadline. Doing so will allow you to address the dispute ASAP without delaying your return or having to file an amendment, both moves which cost money.

Divorce Tax Question #3:

Is your alimony taxable?

If you pay or receive alimony, you will want to pay close attention to the answer to this tax question. Prior to 2018, this tax question was a no-brainer. Now, it takes more inquiry. Why? The tax code section about alimony was changed in the Tax Cuts and Jobs Act of 2017. Big time. Therefore, any alimony awards made after Dec. 31, 2018, will not be considered taxable income to the person receiving the money or tax-deductible to the person paying alimony. Let me answer this divorce tax question by bringing back Bob and Sue.

Example #1: Bob and Sue got divorced in 2022.

Bob and Sue got divorced. As part of their agreement to divide up their marital property, they agreed that Sue would pay Bob alimony of $1,000 per month. They signed this agreement in Feb. 2022 and got divorced in March 2022. Bob’s alimony is not taxable because the agreement was signed, and the parties divorced after Dec. 31, 2018.

Example #2: Bob and Sue got divorced in 2017.

Let me use that example again to answer this divorce tax question with different dates. Let’s say Bob and Sue signed an agreement in 2016 and divorced in 2017. Is that alimony award still taxable income to Bob on his 2022 tax return? Yes. Why? Because the agreement was made, and the parties were divorced before Dec. 31, 2018.

Do you claim alimony on your tax return? If you do, you and your former spouse must claim the same amount! This is also a common reason that tax returns are rejected or audited. Again, communicate with your former spouse about the number to avoid this issue, particularly if a payment straddled the end of the year and you are not sure which year your former spouse is counting it toward.

Final tips for answering the three most important tax questions for divorced persons.

Are you ready to answer these divorce tax questions for yourself? In doing so, keep these tips in mind:

  • Make sure that you are using the appropriate tax filing category to reflect your actual marital status;
  • Speak to an accountant and/or your former spouse if you are considering filing a joint tax return while separated;
  • Clarify who is claiming which children on your tax returns and/or make sure that this is included in a written agreement to avoid future confusion;
  • Understand the rules regarding alimony and if you still claim it on your taxes, make sure you and your former spouse use the same payment number to avoid an audit.

And always, if you are worried about how any of these divorce tax questions apply to your specific situation, please seek out the help of a divorce lawyer or accountant. It will be money well spent!


liz billies

Elizabeth J. Billies, Partner

Liz practices all areas of family law, including but not limited to, preparing pre-and post-nuptial agreements, obtaining no-fault and fault divorces, as well as litigating and settling equitable distribution, custody, and support matters.

Her clients value her collaborative and cost-effective approach to legal representation. Liz strives to resolve all matters expeditiously and efficiently while maintaining a high level of compassion and attention to detail.

If you have a divorce or family law question, please contact a member of our team or call 215.362.2474.

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