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Legal Questions about Divorce and Taxes

A divorce can be a traumatic experience for either or both spouses involved. Finances can further complicate matters, and this includes filing of taxes. Errors made in filing of taxes can result in unwanted consequences and can even land people in trouble with the authorities. This can often lead to questions like the following about legal rights and tax obligations during a divorce.

How may a couple during a divorce file taxes? If the filing of taxes is to be done separately, how will it affect claiming of tax exemptions and deductions?

Under IRS regulations, filing of taxes depends on one’s marital status on the last day of the tax year. For example, if a couple is still married but in a pending divorce on December 31 of a given year, the couple is still considered as “married” as far as the IRS and filing of taxes is concerned.

If taxes are filed separately, either the husband or wife only can claim a particular benefit, such as mortgage interest. If it is claimed by both, that will trigger an IRS automated audit letter and one of the spouses will be charged with penalties and interest for the error. The spouses need to coordinate their deductions and exemptions, or a joint return will need to be filed.

In the case of a child or children, the parent granted primary custody by the court has the right to the exemption(s) unless that parent signs a Form 8332 to relinquish the exemption(s) to the other parent.

While in the midst of a divorce, is it possible for one to file as “married filing separately” even if the other does not want to? What are the possible legal consequences of doing this?

One has the right to file married filing separately if one was legally married throughout the tax year. The only real advantage in doing so is that if one of the spouses is entitled to a refund check, he or she will receive the check and does not have to worry about it being sent to and/or deposited by the other spouse. However, by filing separately, some of the tax benefits available to a married couple may be lost.

A tax return is signed under penalty of perjury. Anything declared on by one spouse can conceivably be used as an admission in the divorce proceedings by the other if it provides the court with some rationale to order something in the other spouse’s favor. For example, even if a tax return is filed separately it may not prevent a spouse from forcing the other to produce that tax return in court if it supports the spouse’s legal argument for alimony.

What tax breaks can one get in the middle of a divorce?

The only tax breaks one can get are alimony-related. Alimony is tax deductible to the spouse paying but is taxable income for the recipient.

How can a person filing for divorce and who was filing taxes jointly obtain information pertaining to Social Security, etc. of their spouse?

During the process of a divorce, one spouse can file a request for interrogatories and motion for discovery, two types of discovery motions asking for specific information and documents. The other spouse is bound to answer the question(s) asked and to produce documents and information required by the other.

A couple going through a divorce in California files taxes jointly. How may the returns be split between the spouses?

If the filing happens jointly, it will have to be split equally because California is a community property state and equitable assets are to be divided equally.

What does an ex-spouse following a divorce do if the other ex-spouse fails to comply with a court order to pay taxes, and the IRS takes the funds belonging to the former?

In such a case one spouse can file a motion for contempt of court against the ex-spouse who is at fault for violation of the terms of the decree. If the IRS is not a party to the decree, they have a right to take the funds from the other ex-spouse and the latter will have to claim these from the ex-spouse who has failed to pay taxes. Not only can a motion for contempt of court against the defaulting ex-spouse be filed for violation of the terms of the decree, but he or she can also make a request through the court to pay the other’s attorney fees for being in contempt of court.

If a divorce decree states that the back taxes and other liabilities are to be split evenly between both spouses, do the IRS or other creditors still have a right to collect from any or both of the divorced partners?

The obligations to the IRS and other creditors are joint and several. The decree from the divorce court is a third party agreement which does not affect them. The creditors have the right to collect from either or both of the ex-spouses. The decree holds good only against the spouse who fails to pay his or her share of the liabilities, in which case the ex-spouse at fault may be sued by the other.

A divorce can be quite stressful and the filing of taxes in such a situation adds to the tension and confusion. Arm yourself with legal knowledge about tax obligations during a divorce by asking an Expert today.

Ask a Family Lawyer

Ely
Ely, Counselor at Law
Category: General
Satisfied Customers: 9160
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
7286322
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