Dear Cassie: If I am divorcing but not yet divorced, does this change how I file my income taxes? Also, do I have to file jointly with my spouse?
A divorce, in and of itself, does not affect your tax filing status. So long as you are not divorced by December 31 of the tax year at issue, you can still file joint income tax returns with your spouse for that tax year. Conversely, if you are divorced before the end of the tax year at issue, you are considered “unmarried” for purposes of your tax filing, and you cannot file joint income tax returns in that tax year.
Here’s an example: you and your spouse start divorce proceedings in January 2021. The divorce is final in January 2022. Even though you are now divorced, you were still married for the totality of 2021. Thus, you and your spouse can file joint income tax returns for the 2021 tax year.
If, however, you and your spouse start divorce proceedings in January 2021, and were divorced in December 2021, you are both considered “unmarried” for the 2021 tax year, and cannot file joint income tax returns for 2021. Instead, you would file as “single” or “head of household,” depending on the facts of your case.
That said, there is nothing which requires you to file jointly with your spouse, even assuming you are permitted to do so. The parties are always free to file “married filing separately” in a tax year in which they are married. Generally speaking, “married filing separately” is a less advantageous tax bracket than “married filing jointly,” thus increasing the total tax owed. On the flip side, you should consider any concerns you may have about the accuracy of the information your spouse is providing on a jointly-filed income tax return. Also, it is prudent to think about how the tax owed, or refund received, resulting from a joint income tax return will be paid and/or shared by the parties. Each case is different, and you would need to consult with your tax advisor and attorney as to the specific arrangements which make the most sense for you.
If you are dealing with the issue of income tax returns during your divorce case, you should seek the advice of matrimonial counsel.
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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.