IRS Rules for Divorce
You’re technically still married under IRS rules if your divorce isn’t final by the last day of the tax year, Dec. 31. This is true even if you or your spouse filed for divorce during that year. You’re also still married, according to the tax code, unless a court order states that you’re divorced or legally separated. You’re no longer married if you’re separated by court order on or before Dec. 31, not just living apart on your own terms. Likewise, you’re considered unmarried for the whole tax year if the court issued your divorce decree on or before Dec. 31. You’re also considered unmarried for the whole year under IRS rules if you have a decree of annulment. This means your filing status can’t be “married” on your tax return.
Tax Filing Status When Your Divorce Is in Progress
You have the option of filing a joint married return with your spouse if you’re still legally married, even if you no longer live together. This may be beneficial because it makes you eligible for a higher standard deduction when you combine your incomes on the same return. For tax year 2022, the tax return you file in 2023, the standard deduction is $12,950 for single filers. If you decide to file as married filing jointly, the standard deduction is $25,900. For tax year 2023, the file you return in 2024, the standard deduction for single filers is $13,850, and $27,700 for those married filing jointly.
Joint and Individual Liability
There’s a downside to filing together if your marriage is on the brink, however. You become jointly and severally liable for all taxes due when you file a joint return with your spouse, even on income that they personally earned. So, for example, if you earned $20,000 and your spouse earned $80,000 (but didn’t pay taxes on that amount), the IRS can collect the taxes due from you. You can be liable for misdeeds as well, such as if your spouse is less than honest about their income or fraudulently claims a tax credit or deduction.
Filing as Head of Household if You’re Separated
You’re not necessarily limited to filing a joint married or separate married return if the IRS says you’re still married because you don’t have a final court order yet, nor must you absolutely file a single return if you’re technically divorced. You might qualify for another filing status: head of household. Filing as head of household allows you to claim a larger standard deduction—$19,400 for tax year 2022—and you can earn more income before climbing into a higher tax bracket as well. You might qualify as head of household, even if your divorce isn’t final by Dec. 31, if the IRS says you’re “considered unmarried.” According to IRS rules, “considered unmarried” means:
You and your spouse stopped living together before the last six months of the tax yearYou paid more than 50% of the cost of maintaining your home for the year
You must also meet a few other requirements to be considered unmarried and file as head of household. You must have a dependent—this would typically be your child, but other relatives can qualify, too. Your dependent must have lived with you for more than half of the year, but some relatives, such as your parents, don’t have to live with you if you pay for more than half of their living expenses elsewhere. You must also file a separate tax return from your spouse to claim head-of-household filing status.
Who Claims the Kids When You’re Divorced?
The IRS says that only one parent can claim a particular child on their tax return in any given year. If you have two children, it’s perfectly OK for you to claim one while your spouse claims the other; in fact, this is somewhat common after a separation or divorce. But if you have only one child, or you have an odd number of children, you and your spouse can’t simultaneously claim any of them in the same tax year. The IRS has special tiebreaker rules if you and your spouse can’t agree on who will claim the children for tax purposes. The right to claim a child goes to the parent with whom the child lived more during the year, typically the custodial parent. The IRS moves on to the second tiebreaker rule in the unlikely event that the child somehow spent an exactly equal amount of time with each parent. The dependent deduction goes to the parent with the higher adjusted gross income (AGI). In addition to the tiebreaker rules, your child must have lived with you for more than half the year to qualify as your dependent. You must provide more than half of your child’s support, and they must be under age 19, or age 24 if they’re a full-time student.
Can You Deduct Child Support and Alimony?
You can’t claim a tax deduction for child support you might pay. The IRS takes the position that if you and your ex-partner had remained married, and if your family had thus remained intact, you could not have claimed a tax deduction for money you spent feeding, clothing, and sheltering your children. These are personal expenses, and they’re still considered personal expenses after your divorce. Alimony is not deductible if it’s provided for in a decree or agreement that’s dated Jan. 1, 2019, or later. Alimony that’s ordered or agreed to in decrees dated 2018 or earlier remains tax deductible. Prior to 2019, the IRS considered alimony to be income that your ex-partner could spend as they saw fit. It was taxable income to you when you earned it, but as it turns out, you didn’t have the use of that money. You, therefore, got to take an above-the-line deduction on the first page of your tax return for the amount you paid. Your spouse would have to claim it as income on their return and pay taxes on it.
Can You Deduct the Costs of Your Divorce?
You can’t deduct any expenses associated with your divorce. This includes fees associated with getting a divorce, court costs, appraisers, accountants, counseling services, or property settlement.
