Filing Taxes While Going Through a Divorce

January 18, 2013 by
Filed under: Divorce 
Divorce

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Going through a divorce is traumatic.  It’s sad.  And it’s a royal pain in the behind.  On top of all the emotional stuff you’re going through, it can also really mess up your taxes.

 

Right now it’s 2013 and you and your ex are still married but living apart.  The divorce will be final this year, but you still need to file your 2012 taxes.  What do you do?

 

Scenario One:  You’ve been apart and on your own with the children for over 6 months.

In this case, you are entitled to claim the head of household filing status, the children’s exemptions, EIC (if your income allows it) and the child care credit of your kids are in daycare. Basically you get everything.

 

Your ex would only be able to claim Married Filing Separately. That could really hurt him at tax time. That’s not your problem, just letting you know what his status is.

 

So—bottom line—if there’s a fight, you win. Be aware, that he’ll probably try to claim the kids anyway (I see that all the time.) Your refund could be delayed by 75 days. But, if he files first and you get rejected—don’t quit, you’re the winner.

 

Scenario 2:  Couples who did not split apart until the second half of the year.

If you lived with your spouse at all during the last six months of the year, then you’re not allowed to claim the Head of Household filing status.  Your only two options for your filing status are Married Filing Separate and Married Filing Jointly.  Until your divorce is final, you cannot claim Single.

 

If you file separately, you lose the Earned Income Tax Credit.  There are other deductions you can lose too, but the EIC is probably the most devastating to lower income taxpayers with children.

 

The incentive to file jointly in this scenario is much higher than if you’re allowed to claim head of household.

 

No matter which scenario you’re in, there’s another filing option:  Married filing jointly.

 

First, if your ex is abusive or dangerous to you or your children in any way—don’t go there, stop here and file head of household or Married Filing Separate. Never risk physical danger.

 

But, if your ex has some redeeming characteristics—think about it, you’ve probably got adorable kids.  He’s done something right somewhere along the line.  Remember, you’re going to be dealing with your kids’ father for the rest of their lives even if you’ve divorced him.  Mercy might be a good option for future family peace.

 

So, if you’re thinking about filing jointly, first, you prepare your own taxes, as HOH or MFS like above, claiming all of the exemptions you’re entitled to and figure out your refund.

 

Next, I recommend doing this at a tax place, not on your own—so that you give yourselves a “mediator”, figure what the refund, or tax situation would be if you two filed together.

 

Then you’re going to “split the refund”. That is, you set it up so that instead of getting one refund check to go into one bank account, you have the IRS send the refunds to your separate checking accounts (so you don’t have to rely on your ex to sign a check or give you money or anything like that.) You do that using the 8888 form.  Here’s a link:  http://www.irs.gov/pub/irs-pdf/f8888.pdf

 

BUT—and this is really important:  OKAY, I’M CAPITALIZING AND WRITING IT SEPARATELY BECAUSE IT’S REALLY IMPORTANT: You don’t have to split the refund evenly. You make sure that you get the full amount of what you’d get if you filed separately. That’s only fair. If you were the one that supported the kids, paid the rent, etc, especially if you would be allowed to claim head of household, then you should get the whole of that much of your refund.

 

You make sure that the refund is split the way it should be and don’t leave the tax place until you see that the return has been e-filed.  That way he can’t go back and change the dollar amounts.

 

Remember, you only file with the ex in order to keep him from totally tanking on his taxes because of the married filing separate classification.  This might not help him at all—in which case you don’t file jointly.

 

Sometimes, you don’t want to file jointly with a soon to be ex.  Here are some good reasons not to help the ex by filing jointly:

 

  • If he’s in some kind of tax trouble from before—keep away
  • If he owes on student loans or child support to a previous family—keep away
  • If he’s self employed—he’ll probably owe and is more likely to get audited—that’s a red flag, use your judgment. The EIC you’d get could be used to pay his self employment taxes and your refund probably wouldn’t be high enough to cover what you’d get by filing alone.  But if he’s a decent person—and not crooked, the financial benefit to him could be amazing.
  • If he’s crooked.  Seriously.  If you suspect that he has cheated on his taxes in the past, don’t risk having your name tied to his tax return.  Walk away.

 

Divorce isn’t easy on anybody.  Make sure you know your rights and what you’re entitled to and don’t be bullied into doing something that’s not legal or in your best interests.

Comments

4 Comments on Filing Taxes While Going Through a Divorce

  1. Nicholas on Sat, 16th Feb 2013 12:09 am
  2. In mid April of 2012 my wife and I separated and I moved out. Hoping we would reconcile, but after she filed Child support papers on me in May 2012, it was my wake up call that we would not. I paid the utilities till the end of May, until I realized she had step-sons bio-dad already moved in.

    I filed divorce proceedings June 2, 2012 as I was not getting consistent visits with my 1 child and 1 step-child.
    On June 28th the temp order went into effect for joint physical care and joint custody of our one child, (full week with mom, then full week with dad)
    and to keep them together I also take my step-child every other
    weekend and more at times. Nothing in the decree defines who is to claim our son.

    After entering things into custody Xchange software to keep track of this better, it shows I have had my son more days than his mother from end of June 2012, till the end of December 2012.
    She claims she had our son more and I disagree. She never worked while we were together, but now that she is back with step-sons bio-dad, she has to. He claimed his son, she claimed ours a few days ago.
    We talked about it and of course even though she said she
    wasn’t going to file till we figured it out, she filed anyway. She said she would give me part of it, but I don’t see that happening either.

    My confusion comes in as to when the separation begins in the eyes of the taxes and IRS, or not at all because there is no final decree as of yet either?

    When I filed for divorce, or the day we went to court and the order for 50/50 shared custody was granted?
    Am I correct in determining I am entitled to claim our son on my taxes and not her? I have the highest AGI.
    And if an audit determined I was wrong could they deny me for ever claiming my son again?

  3. amos on Sat, 16th Feb 2013 4:29 pm
  4. I have found it difficult to find information when a couple has separated (2011), a year later one (me) moves to anther state (Kansas to MO). So ten months of 2012 I lived in MO, but still legally married. Am I responsible for paying KS taxes on ALL income for 2012 even though I was a resident of KS for only 2 months?

  5. Jan Roberg on Thu, 21st Feb 2013 8:37 pm
  6. Hi Nicholas,
    As I see it, you have been separated for more than 6 months and you have had custody of your child for more time than our ex. You should be able to file as “head of household” and claim your child. If your income is low enough, you may also be entitled to EIC.
    Now-you know that she’s already filed, so you will wind up having to paper file the return and fight.
    If you do this, you will both go into audit. What I think your advantage is–is that you already plugged your days into your software and you came out ahead. You know you win there. That’s the big IRS issue–they always go for the number of days first. Days trump AGI.

  7. Jan Roberg on Thu, 21st Feb 2013 8:44 pm
  8. Hi Amos,
    No, Amos. You will file as a part year resident of Kansas and a part year resident of Missouri.
    Even if you continue to file as married filing jointly–you can still live in different states.

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