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.
When you’re going through a divorce you have a million things to think about, and probably the last thing you want to spend time on is taxes. But it’s important to think about them early, rather than later—here’s why.
As an enrolled agent, I usually don’t get to talk to men going through a divorce unless they’re already a client. Instead, I see is what happens to divorced men at tax time after it’s too late for me to fix things. Here’s the basic problem: a guy is going through a divorce. He goes to his attorney and hands over his pay stubs so that a fair and reasonable amount can be determined for child support.
The child support is based upon the breadwinner’s take home pay. This is where the problem is. Up until the divorce, the man generally has been filing his tax returns as “married filing jointly”; which has a lower tax rate than “single.” If he has children there are the exemptions for the kids which reduced his tax. Of course the exemption for the wife will be eliminated with the divorce too. If he owned a home then there were itemized deductions and tax advantages that he’ll lose as well. Bottom line: getting a divorce will increase a breadwinner’s income taxes.
For example: Let’s say John is going through a divorce. He makes $4,000 a month and brings his pay stubs to his attorney to determine the child support payment. Currently, John’s withholding is based on 4 exemptions; one for him, two for his kids, and an extra one because of his deductions. In this case, his federal withholding would be $248 per month. But the reality of the situation is that after the divorce, John will be single and filing as single with probably no exemptions on his tax return. He should be withholding $561 per month instead, that’s a difference of over $300.
This creates a double whammy. First, the child support is set based upon John’s take home pay which right now looks like it’s $300 a month more than it really should be – so John winds up paying more in child support then he can really afford. Then, when tax time comes around, John wasn’t withholding enough and now he has a tax debt of $3600 that he never expected and can’t afford to pay because all of his extra money is going to his child support.
Remember, paying child support does not count as a tax deduction.
So what does John do next? He goes to his attorney and pays the attorney to renegotiate the child support payment. This costs him even more money and ticks off the ex-wife (who wasn’t too pleasant to begin with-that’s why she’s the “ex” wife.) So now he’s got a tax debt, attorney fees, an angry ex-wife, and in the meantime, he’s racking up another IRS bill because he can’t afford to change his withholding if he wants to make those child support payments.
Now a really good attorney recognizes this problem and would have John change his withholding before he ever went to court. But from my end, I’ve seen too many cases where this wasn’t done. So if you’re going through a divorce, you need to be the one to make sure that you’re protected. Plan out what your tax situation will be as a single man and prepare for it up front. Hire help if you need it, it will be money wisely spent.
Please also read “Stolen Children“.
This happens to people all the time. You go to electronically file your tax return and it gets rejected because someone else has already claimed your child. What do you do? I say fight back, and here’s how.
The first step to fighting back is to make sure that you’re in the right. Ask yourself these questions:
- Are you the biological parent of the child? Hint: if your answer is “I’ve raised her like my own.” You’re going to have trouble winning. If you’re a grandparent, step parent, aunt or uncle; and the person who claimed the child is the actual parent, you don’t stand much of a chance. (That said, some folks will have a credible case, but I’d suggest professional help here because it is tricky.) To go this route you should be the real parent.
- Did the child live with you all year? If not all year, for at least over half of the year? If you had custody all year you have a much better shot of winning. You absolutely must have had custody for over half of the year to even think of trying this. If you’re on the border line, where your ex had the child for half the year and you had half, this might not be worth it.
- Is this good for your child? Generally you’d think that having more money in the household would be good for your child, but if fighting with your ex could cause harm to your child, you might want to stop and think about it a bit.
Step two. Once you’ve determined that you are in the right and that you are entitled to claim your child, then what you need to do is print out, sign and mail that rejected return to the IRS —keeping your child as your dependent on the tax return. When you do this, the IRS has to take it in. They have to look at it and it’s going to throw whoever claimed your child into an audit. If an Earned Income Tax Credit is involved then those audit papers generally run 11 to 22 pages long. (11 pages for a straight EIC audit, 22 for an EIC and head of household audit, they’re the same questions it’s just that 22 pages is more intimidating.)
Here’s the scary part, you’re going to get the same paperwork. It is a little intimidating, but you’re expecting it. Because you’re the custodial parent, that is your child lives with you, you can answer those questions with no problem. People who shouldn’t be claiming your kids can’t answer the questions and that’s why you’ll win. If your kids are in school, you’ll need a document from the school saying they attend and where they live. If they’re too young for school, you can get a statement from the doctor’s office that you’re their parent and you pay their medical bills. You’ll have the resources to prove that you’re the parent.
If you’re reading this and thinking, “I can’t prove I have custody of my kids,” then maybe you shouldn’t be filing for them. You will have to provide some proof: school records, doctor’s files, church documents, day care receipts, health insurance records, something professional. Your Mom or a friend can’t vouch for you.
Once you’ve received the audit papers, completed them and sent them back, then it’s a waiting game. Your ex (or whoever claimed your child) will have to complete the same paperwork. The IRS will examine the papers and determine who had the proper right to claim your child. But since it’s you, you will win.
The big downside to this is that it will take months to settle. Months. On the upside, once your ex has lost an audit case for claiming your child, it will be very difficult to ever try it again. You’re not just solving a problem for one year, you’re preventing future problems as well.
What if you need the money now? That’s the most common question. Sorry, but that’s impossible. What you’ve lost, you can’t get back without a fight. If you have more than one child, and only one was claimed incorrectly, you could file now and at least get part of your refund, then file an amended return later. I don’t recommend doing that, but I also understand sometimes you need the cash now.
If you try doing this as an amended return there are two consequences: first, it will slow everything down even more. You can’t file an amended return until your first return is completely processed. An amended return will take about 16 weeks to run through the system before the whole audit process begins so you’re basically adding 4 to 5 months to the timeline for solving this issue. Second, filing a return and amending to add a child reduces your credibility with the IRS. Your documentation had better be rock solid because you will have no wiggle room for doubt if you submit an amended return to claim your child.
One more thing to consider before you go through with this. Call your ex and talk it out. I’m not crazy, hear me out. You’ve read this far, you know that fighting is a big hassle. Before you go into warrior mode, maybe you can negotiate a peace treaty. What do you stand to gain from this? What does your ex stand to gain? It’s important that you file your returns legally, but with divorced or never married couples, you can split an exemption: the custodial parent claims head of household and EIC, the non-custodial parent claims the child tax credit and the exemption. It could be a good thing for both of you and for your child. (Remember, what’s best for the child?) Instead of going to war, you have your ex amend his/her return and you file your return right after the amendment is accepted. It still is slow, but much faster than going through an audit. And it’s a peaceful solution. (Please, don’t even think of trying this if your ex is dangerous. Safety first.)
Finding out that someone else has claimed your child for taxes can be shocking and financially devastating. The assumption is usually that it’s the ex, but that’s not always the case. When you file to claim your child, you will never be told who the other person is. (Of course, if it’s your ex you’ll probably get an unfriendly phone call so you’ll know.) It’s scary how often it’s not the ex, though. Be sure to protect your child’s social security number. Don’t keep the card in your purse. Don’t share the social security number with anyone. Your child needs your protection. It’s hard enough being a kid, being a kid with a stolen identity is worse.
Note: We try to answer all the questions that come to us but please be patient. It’s our busy season right now. We may not get to your post until the weekend. When you make a post and use the capcha code, it won’t immediately show up. You see, for every normal person like you that posts, there’s about three advertisements for things your mother wouldn’t approve of. (We try to keep this a G rated website.) We have to edit those out. If you need an answer right away, here are some links that might help:
How to find free tax preparers: http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers
How to find your local IRS office: http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1
If you want to hire us, please call (314) 275-9160 or email us. We do prepare returns for people all over the country (and a few foreign countries as well.) We are sorry but we cannot prepare an EIC return for someone outside of the St. Louis area because of the due diligence requirements.
You wouldn’t believe how often I am asked, “How can I stick it to my ex?” People going through a divorce or breakup are so angry and hurting that it’s natural to want to strike back. While I feel deeply for peoples’ pain and suffering, the best advice I can give to that question is don’t. Here’s why.
The easiest way to mess up someone else’s tax return is to claim their children on your tax return before they can file theirs. It’s that simple. Once the children’s social security numbers have been claimed on a tax return, they can’t be used on another return. That means your ex can’t e-file a return and can’t get the refund she’d get with the kids. It sounds pretty nasty, but there’s a very important downside.
First, if don’t have custody of the children and they haven’t lived with you for at least six months, well then you’d be committing tax fraud. Depending upon the severity of the fraud (especially if you received an Earned Income Credit) it’s even possible that you could see some jail time. How badly do you want to mess with your ex?
But let’s forget the possible jail time. Let’s examine what would happen in a regular dependency dispute. Your ex, if she were smart (or had at least hired someone like me), would still submit her tax return claiming the children. She’d have to mail the return in, because e-file would no longer be available to her. Then because there would be two returns claiming the same children the IRS would issue dependency audits to both of you. That audit letter is around eleven pages long listing several items that you’re going to have to come up with to prove that you are really the custodial parent. The information is fairly easy for a custodial parent to access, downright impossible if you’re not.
So, although you’ve dealt your blow and messed up her refund temporarily, in the end she’ll get the money and you’ll lose the audit. Not only will you have to pay back the tax money you received from the IRS, there will be fines, penalties, and you’ll probably be forbidden from claiming and Earned Income credit in the future (even if you would really be entitled to it.)
So, back to the original question, “Is there a way to stick it to my ex?” The answer is yes, but it will hurt you worse.
Let’s face it, divorce sucks and paying alimony is even worse. But if you have an arrangement where you are supposed to be paying alimony (and I mean alimony, not child support) it’s to your advantage to pay up for the year before December 31. Here’s why:
Money that is paid out as alimony is a tax deduction for you. (And, if it’s any consolation, it’s taxable to your ex.) Child support, on the other hand, gives you no tax deduction and your ex pays no income tax on it.
Alimony is considered to be an “above the line” deduction. That means it lowers your adjusted gross income. Now that sounds like a lot of accounting jibberish, but on your tax return, it’s valuable. It can make the difference between whether or not you qualify for other deductions or tax credits. Made simple: above the line deductions are good.
Now here is the really important part: if you pay both alimony and child support, and you’ve missed some payments, then whatever payments you have made get counted as being child support first, and alimony second. Okay, in plain English: Let’s say you’re supposed to pay $100 a month for alimony and $200 a month for child support. $300 a month total. (Okay, that must sound like a fantasy but I like easy numbers.) Anyway, suppose you were good all the way up through September at paying $300 a month but then something happened and you didn’t make any payments from October through December.
For those first nine months you paid a total of $2,700. In your mind you paid $900 in alimony and $1800 in child support, right? Except that’s not how the IRS sees it. To them you paid $2,400 in child support and $300 in alimony, because for tax purposes you pay the child support first. So with the money that you did pay, you don’t get your full deduction. And let’s be real here, we’re probably talking about bigger numbers in real life. This tax deduction can really make a difference.
Bottom line: if you want to claim your full alimony deduction, all of your alimony and child support for the year must be paid in full by December 31st.