If you’re headed for, or already going through a divorce, you already
know that it’s difficult. What could add to the anxiety of gathering
your financial records, dividing households, and trying to reach a marital
settlement agreement? Taxes.
If you are headed for
divorce, or if you are recently divorced, you will soon be coping with different
tax issues, such as the filing your own tax return and possibly claiming
the “dependency exemption” for your children (if any). In
the spirit of the approaching tax season, we wanted to go over divorce
and how it affects a divorcées taxes.
What is your filing status?
For starters, you’ll need to determine your filing status. If you
were officially divorced by midnight on December 31 of the tax year, you
would file separately from your ex-husband or wife. If you are the custodial
parent and you’re the parent receiving
child support, you may qualify for the desirable “head of household” status.
If you’re the noncustodial parent, you will be filing as a “single”
taxpayer, even if you were married for part of the tax year. Your filing
status all comes down to your marital status on December 31.
Spousal support is tax deductible.
Per the Internal Revenue Service,
spousal support is deductible for the paying spouse and the receiving spouse must include
the support in their income. Meaning, spousal support is counted as taxable
income for the receiving spouse.
Child support is not tax deductible.
Unlike spousal support, child support is not tax deductible, nor is it
counted as income.
Which parent claims the dependency exemption?
As a general rule, it’s the custodial parent who claims the dependency
exemption on their return. However, the noncustodial parent can file the
dependency exemption for a tax year if the custodial parent signs an IRS
Form 8332 (Release of Claim to Exemption for Child of Divorce or Separated Parents), and the noncustodial parent attaches the signed form to their tax returns.
How does my child qualify as a dependent?
In order for you to file the dependency exemption, you must be the custodial
parent and your child must qualify as a dependent. To qualify as a dependent,
your child must be a biological child, a stepchild, or a foster child
under the age of 19, and he or she must have lived with you for more than
half of the tax year.
Follow the IRS’s rules about spousal support.
In order for the paying spouse to deduct their spousal support payments,
they have to make sure that their payments “qualify” as spousal
support. Alimony does not include child support, noncash property settlements,
payments to keep up the paying or supporting spouse’s property, or
use of the paying spouse’s property.
You cannot deduct spousal support if you still live together.
Even if you are legally separated or officially divorced, you cannot deduct
payments to your spouse as spousal support so long as you are members
of the same household. If you both live in the home that you lived in
while married, it still counts as “one household” even if
you sleep in separate bedrooms.
If the dependency exemption is an issue, file your taxes first.
If you intend to file the dependency exemption for your children but your
ex says that he or she will file the claim instead, file your return first.
Since you already claimed the dependency exemptions for your children,
the IRS will make your ex prove that they are entitled to the exemption
under the law.
Certain legal fees may be deductible.
While most of the legal fees associated with your divorce are not tax
deductible, any professional advice that you received about the tax consequences
of divorce can be used as an itemized deduction on your Schedule A.
Consider the IRS’ credit for childcare.
If you are the custodial parent and you have to pay for childcare for
children under the age of 13 so you can work, you should take advantage
of the childcare credit, which covers a portion of costs of childcare.
While a noncustodial parent can claim the dependency exemption if their
ex-spouse signs the IRS Form 8332, that is not the case with the childcare
credit. Only the custodial parent (the one receiving child support) can
claim the credit for childcare expenses.
If you’re an employee, you should change your withholding on Form W-4.
If you’re going to be receiving spousal support, remember, it’s
taxable income. You may want to have extra taxes withheld from your paycheck
to ensure the new tax liability is covered at tax time.
If you’re employed and you’re paying support, you may be able
to claim one additional exemption for a certain amount of deductions,
spousal support included. Contact your tax professional for further advice
on this matter.
What to do if the withholding isn’t enough.
Are you concerned that your withholding will be insufficient to cover
your taxes for the upcoming year? If so, we recommend setting up quarterly
estimated tax payments – this way you will have enough to pay for
your tax liability and you won’t owe taxes and penalties when your
taxes are due.
Are you getting divorce soon?
If you are getting divorced in the near future, you will need to give some
serious thought and consideration into the above information. To learn
more about the tax consequences of divorce, we urge you to
contact Claery & Green, LLP to schedule a
free case evaluation with one of our Los Angeles divorce lawyer.