When it comes to stressful events and processes, I can scarcely think of a more stressful process to endure than filing taxes. Even if you have a professional in your corner to help you file it is not a fun to sit down and have organize and plan out how you are going to attack your taxes in any given year. It’s bad enough that we have to endure weeks or months of preparation all for the possibility of having to pay money to the government. We are also told to keep receipts, keep track of our spending and do a host of other activities that sound suspiciously like work all the year round.
Fortunately, family law attorneys do not have to worry too much about taxes. Sure, your attorney will do their best to answer questions about taxes. However, we are not tax professionals and the information that we provide should not be taken as tax advice, per se. Some of the guidance that we give associated with your divorce case may sound like advice but I can tell you that we are not in a position to advise you about taxes. There are tax professionals out there who are much better equipped to guide you in this way.
However, since I know that nobody likes to think too much about taxes it is still a subject that is important in your life. Since there really isn’t another area of the law that deals primarily in issues related to daily life than does family law I think it is something worth discussing as much as we are able to. If you have decided to move forward with a divorce and are nearing the end of that process then you have more things to concern yourself with when it comes to taxes.
As we begin to close out the year 2020 and move closer to 2021, I wanted to share some information with you as far as general rules that you need to be aware of that may be able to help you when it comes to issues concerning divorce and taxes. If you have questions about divorce please feel free to contact the Law Office of Bryan Fagan. We will be happy to sit down with you for a free of charge consultation to help clear up any misunderstandings you may have. If you have additional questions about taxes you probably ought to contact a tax professional for further guidance.
When it comes time to file your taxes will you be single or married?
You may be raising an eyebrow at this point and wondering whether or not the question I just asked is as simple as it sounds. It’s pretty clear cut whether or not you are married or single, right? Well, as you get into a divorce case that question may end up being a little more difficult than you gave it credit for at first.
Keep in mind that the IRS will count you as a married person as far as taxes are concerned unless your divorce is final prior to December 31st. So, unless a judge has signed off on your final decree of divorce prior to December 31st, you will be married for all of this year. It doesn’t matter if you are very close to being completely done with your divorce. It also doesn’t matter if you feel like you and your spouse are divorced even though your case has just started. Divorced means that the final order is signed, sealed and delivered. Anything short of that means that you are technically still married.
On the other hand, if the judge signs your divorce decree on December 27th it would be as if you and your spouse had been divorce for the entire year. As you can see plainly, a person will either be divorced or married for any given year. There are no opportunities to file as a married and single person in any given calendar year.
There is nothing that you can do that I am aware of in order to sidestep this rule. Even if you and your spouse have been separated for a year and you have been living apart for that entire time it would still not be possible for you to file as a divorced. The only person’s opinion that matters as far as whether or not you are divorced is the judge in your court. Your own opinion about how you feel (married or not) is irrelevant to this discussion.
In the event that you were married for any given calendar year, you may be wondering whether or not it would advantageous to file your taxes married filing jointly or married filing individually. Filing a joint return with your spouse (even if you are no longer living together) can be a good thing for you because doing so allows you to take advantage of a larger standard deduction when your incomes are combined on the tax return. You will need to make a determination about what is better for you and your spouse given your incomes. Sometimes if you earn substantially more money than your spouse does it can really be to your benefit to file a joint return as married persons.
Why you may not want to file a joint, married tax return
Of course, with every benefit to doing something there are at least a couple negatives associated with that type of filing. One of those negatives that comes to mind immediately is that you become liable for all the taxes due when a joint return is filed. This is true whether or not a dime of the earned income came from your labor.
For example, if you earned $20,000 in 2020 and your spouse earned $80,000 then the IRS can come after you for the taxes due on that $80,000 even though you didn’t actually earn that money. Any bad behavior associated with the filing of taxes that your spouse engaged in (or your tax preparer engaged in on your behalf) could come back to haunt you, as well.
You should reach out to a tax professional if you have additional questions about how you can become liable for certain activities of your spouse when it comes to filing taxes. However, if you are working to get divorced then I probably wouldn’t want to add any more problems onto the list of issues that you are trying to deal with right now. Getting a divorce is tough enough. You probably don’t want to add tax problems onto pre-existing divorce problems- especially when the problems being caused are not your doing.
What about filing as the head of household?
Filing head of household can be a great benefit to you. You may file with the designation whether you are divorced or still married as of December 31st. There are advantages to doing so and I wanted to take some time with you now and go over them with you.
For starters, filing as head of household means that you get to take advantage of a larger standard deduction than filing either single or married. This means that you can earn more income and still not feel the full effects of jumping up into a new tax bracket. If you and your spouse stopped living together no later than May 31st and you paid at least 51% of the cost of maintaining your home for that year you may file as head of household.
However, you may not file as head of household unless you have a dependent. Usually this means that you must have a child in your household in order to file as head of household. Other relatives can count towards this requirement and the dependent must have lived with you in your home for more than 50% of the year. One thing to keep in mind is that your parents don’t have to live with you but can still count as a dependent of yours if you are paying more than half of their living expenses.
One last thing to mention about filing as head of household is that if you file a married filing jointly tax return then neither you nor your spouse can file as head of household.
Can you deduct from your taxes any child support that you have been paying?
This is also a question that we receive frequently- especially from fathers. If you are on the hook for paying thousands of dollars a month in child support can you deduct those payments on your taxes? The IRS answers that question in the negative. Even if you are consistently paying tens of thousands of dollars per year in child support to your ex-spouse, you cannot go back and deduct that amount on your taxes.
Had you and your ex-spouse remained married and not gotten a divorce then you could not have claimed a tax deduction for money that went towards feeding, clothing and housing your children. Personal expenses are generally not deductible on your taxes. Why should you be able to do so after you get a divorce, the thought process would beg the question. Child support doesn’t count as income for your ex-spouse as children, either. As a result child support doesn’t really count as anything in particular when it comes to taxes.
What about the cost of divorce? Can you deduct those when doing your taxes?
You spent so much time and money hammering out agreements with your ex-spouse when it came to child custody, child support, and the rest of the terms of your case. Can you take what it cost you in attorney’s fees and deduct those from your 2020 taxes next year?
As of 2018 the answer to that question is no. Attorney’s fees and legal fees in general that you expended in order to get a divorce could never have been deducted at any point in time, to be fair. However, what you could deduct were fees that you paid towards an activity that generated income. For instance, if you had to pay an attorney to help you draft an order that would pay your spouse maintenance after your divorce, then those legal fees could be deducted from your taxes.
Whichever parent has primary custody of your kids can claim the kids as a dependent once divorced
Once you are divorced, you may be curious about whether you or your ex-spouse are able to claim the children on your taxes as dependents. The answer to that question is that whichever one of you has primary custody of the kids will be able to claim the children as dependents on your taxes. For the most part, divorced parents have orders in place that name one of them as the primary custodian of the kids
In the event that you and your spouse have an unorthodox divorce decree which does not clearly spell out which one of you has primary custody of the kids you would then need to look to which of you earns more income each year. Whichever one of you has the higher annual income will be able to claim the children on their taxes. This is due to that parent being able to take a larger benefit from the deduction due to their income being taxed at a higher rate than the lower earning parent. The more money that is saved, theoretically, the more money that can be spent for the benefit of the kids.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material presented in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations are great opportunities to ask questions and receive direct feedback about your specific circumstances. Thank you for your interest in our law office and we look forward to the opportunity of discussing with you how we can serve you and your family.