Choosing Your Filing Status After A Divorce or Separation 19

Tax Filing Issues For Divorcing Couples

One of the biggest tax issues that divorcing or separated couples face is the question of how to file their income tax returns. And a big question it is.

In general, couples who were legally “married” on the last day of the tax year (typically December 31st) are allowed to file as “married, filing jointly” or “married, filing separately”.

These choices raise questions for a couple going through a divorce or separation as the status you choose could have a big impact on your tax. It could be the difference between having to pay and getting a refund.

For example, couples who file “married, filing separately” cannot take the earned income credit nor can they deduct the cost of adoption expenses, educational expenses or dependent care. Separate filers also lose some of the child tax credit available to joint filers as well as deductions for capital losses.

Divorces however are not always amicable and many couples are dealing with a great amount of stress, anger and resentment. As a result, one of the spouses may choose to file separately out of spite. It can be helpful to seek assistance from your divorce attorney and your accountant if your estranged spouse wants to file separately merely to prove his or her point.

Divorcing couples may also be wary of filing jointly because they are concerned about the accuracy of their ex-spouse’s data and that’s a serious consideration indeed.

Under the tax laws, both spouses are equally liable for any penalties and fines resulting from an incorrect tax return. This liability can be exempted through what is called “Innocent Spouse Relief” but you must prove that you were unaware of the inaccurate data. It can be a difficult situation to extract yourself from after the fact.

In addition to these filing options, there are also some special rules that may allow a divorced or separated parent to file under the more favorable head of household filing status .

If there are children, the issue of dependency – who gets to claim the dependents? – must also be addressed.

What about couples who were married for the majority of the tax year but obtained a divorce before the year was over?

If you obtained a divorce decree or legal separation decree before the last day of the tax year, then you are considered to be unmarried for the entire year and in this instance, you would file as “single” or if you qualify, as “head of household”. This assumes that you are considered to be divorced or legally separated under your state’s law by the end of the year in question.

If you and your spouse are separated but do not have a final decree of divorce or separate maintenance by the end of the tax year, you are considered to be married for the whole year for tax purposes.

Accountants will often use their income tax software to estimate your tax liability using several different tax filing statuses. They can show you the real-life differences between the “married, filing jointly” and “married, filing separately” choices before you make a final filing decision. They can do the same for “single” and “head of household.” This is definitely something for which you should seek professional advice before making a decision.


  • tina gathright

    if 2 commonlaw man and wife couples seperate and they have joint properties and debt, can one file bankrupty? and can the burden be placed soley on the unfiling indiviual?

  • Monica

    I divorced 10 years. 5 years ago my ex husband became very ill and I came back to live w/ me in the house that we owned together for 25 years and that I now own alone. Now that he is fine I am selling the house and he will live with one of our children. I will give him half of the capital gain as written in the agreement. Now, can we file jointly ?

  • mom2kids

    We filed jointly and are awaiting a refund. I have since moved out for a legal separation. Please tell me that I can legally get 1/2 of that refund? I’m sure he’s cashed it and hasn’t told me.

  • Malinda

    My husband and I separated in July 2009. Last year we filed MFJ. We live in Texas which does not have anything in place for legal separation. Does paperwork have to be filed to be considered legally separated? I don’t want to file MFJ this year because my income is so low and I have student loans that I cannot pay. If I file alone, I can get income based payments. However, if I file MFS, it will hurt him and I don’t want to do that. My question is can we file single since we are separated although no separation or divorce paperwork has been filed?

  • nancy

    my daughter has lived with her father for 2010. Divorce was final in March. we agreed to 50-50 custody, but the divorce settlement states that I get to claim her. Is this legal?

  • Jermy

    I have a question and I’m hoping you can help. Please email me.

  • Tina

    My ex husband and i had a disolution a year ago i get half of his retirement he recieves from OPERS he writes me a check every month for half of it , my question is do i have to pay taxes on it ,i worked when i left him but dont work anymore due to alot of stress and depression i never got to work when we were married he never let me work , also if i meet a guy and move in with him will i loose my half of the retirement i get each month ? I need answers Please.

  • LEA

    My husband and I separated in October 2010. Last year we filed MFJ. We live in Arizona. Does paperwork have to be filed to be considered legally separated? I don’t want to file MFJ this year because Im the only one supporting My kids and living with them as well . My question is can we file single since we are separated although no separation or divorce paperwork has been filed?

  • BLibby

    I was divorced on December 15 but because my husband was out of state he had 21 days to appeal. Does that mean I was still legally married at the end of the year?

  • A friend of mine has been living with her estranged husband for the past 10 years. She applied for “separation ” papers while living in Maryland, a little over 10 years ago. She never finalized the divorce. Soon afterwards, they got back together, moved to Pennsylvania and have been living together for the past 10 years. Are they still legally married? Can my friend get in trouble for filing “Single” on all her tax returns for the past ten years?

    • Kimmy

      If they never got divorced, they are still married. She cannot file single on her tax returns.

  • Emilia ontiveros

    In process of getting divorce. My question is we have 6 kids but i have full custody & i will be claiming 3 &him3 & we came up with a legal signed &the notarized document saying that he will give me 80%to of the refund every year. If he doesn’t do it can i send this paper to irs or hire a lawyer to get the money?

  • Thomas

    I have been seperated from my wife for over a year and now that it is tax time do I have to file as married filing seperate. We live in Louisiana and have no legal documents stating seperated so can I file as a single.

    • Cordoba

      Dear Thomas — I am in the same situation. Did you get a response to your question? Thanks, C.

      • Franny

        Same here. Any response?

  • Judy

    If a divorce decree terminates in May because the child graduated from High School, does the parent have the legal right to claim that child for that calendar year or does the parent who resides with, and supports him the majority of the time?

  • Lois

    If I am divorced in arizona before end of year and file my taxes as single am I required to claim part of my husbands income prior to filing for the divorce?

  • Ann

    I am separated from my husband. Last year we filed jointly and split the return 50- 50. This year we are filing married but separate. What do I do when it comes to the box to fill in the amount we received back from federal taxes? Do I put half or the whole amount? I also read somewhere that if he itemizes then I must also. Is that true?

  • Sandy

    My husband and I live in New Mexico, we have been separated for 5 years (no legal agreement) we have 4 children that I support by myself. We have continued to file MFJ and he gets his part of the refund, I feel this is somehow unfair but am not sure how to file or if I can even file differently without a legal separation or divorce.