Filing taxes can be a daunting task. In the United States, there are currently five Filing options, as follows:

• Single;
• Married filing jointly;
• Married filing separately;
• Head of household; and
• Qualifying widow(er) with dependent child.

Determining which filing status to use, and whether to file jointly or separately, depends on a number of different factors. First and foremost, your marital status on the last day of December dictates your marital status for tax purposes for the entire year. Consequently, if your Divorce is not final, you may choose to file joint tax returns, married filing separately, or, under certain circumstances, filing as a single person.

According to U.S. Code § 7703 (a) (2), if you are legally separated from your spouse “under a decree of divorce or of separate maintenance” you are not considered married and may file as single.  However, readers are cautioned not to presume they are “legally separated” just because they are living apart and a divorce is in the works.  As you might imagine, the Internal Revenue Service has strict requirements to meet the “legally separated” standard. You are encouraged to confirm with a qualified divorce attorney whether you are or are not “legally separated” for purposes of filing your taxes prior to filing as single. Although the state of Florida does not recognize “legal separation”, there are multiple factors to consider when filing your taxes during or after a divorce.

Considerations for Filing Taxes Separate from Your Spouse During a Divorce

Filing separately (although not necessarily filing as “single”) may be a good idea under certain circumstances. For example, if your spouse, or soon to be ex-spouse, has past or present legal problems, tax problems, or credit problems, it may be more prudent to file separately. Additionally, couples are advised when you file jointly, you are each 100 % responsible for the representations found in the tax filing.  If you believe your spouse may fail to report all their income, understand, you will be 100 % responsible for all income that was not reported, along with subsequent tax liabilities.  Alternatively, if you are worried about your spouse’s tax debts, you can avoid this issue by filing separately.

Separate Tax Filings and Children

A word of caution: If you and your soon to be ex-spouse decide to file separately, you must have a conversation about the children.  You may not both claim the children as an exemption.  However, one of you should claim the children.  Additionally, one of you should claim the child care credit, if you are eligible to do so. The decision about who claims the exemption should be worked out between you, if possible, assuming it was not addressed in the legal separation documents. 

If You are Divorcing, Consider Hiring an Attorney

For tax purposes alone, it is a good idea to hire a divorce attorney who understands the tax codes and can assist you in determining the best approach for you and your family. Sometimes, a couple will be best off by filing jointly. Other times, married filing separately is the best option. At other times, the single designation makes the most sense.  The IRS allows you to deduct a portion of the fees you pay related to tax advice.  This can include money spent analyzing how your pending divorce might impact your tax obligations.

A qualified family law attorney is an invaluable investment in your future.  Attorney Eric C. Cheshire has been practicing family law for more than 29years.  Contact our office at 561-655-8844 to discuss your tax concerns related to your divorce today.

Additional Reading

What Divorce Can Teach You About Starting Over in the New Year

Five Reasons to Hire a Divorce Lawyer

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