Should we file taxes jointly or separately in the middle of a divorce?

couple deciding how to file taxes while divorcing

Filing taxes can be cumbersome and confusing, especially if you're in the middle of a divorce. Filing jointly or separately is an important decision to make, so below, we're sharing the 4 most common questions we get about filing taxes during divorce, and a few tips to help you navigate this season. 

4 Questions About Filing Taxes During a Divorce

1. Should we file taxes jointly or separately in the middle of a divorce?

If your divorce is not final by December 31st, you still have the option to file as "married filing jointly" for that tax year. There are a lot of factors to consider when determining what is best for your situation. If you are in the middle of a divorce, I recommend you consult with your tax professional and your attorney for guidance.

2. Why would parties file taxes as "married filed jointly" in the middle of a divorce?

In general, filing jointly may result in a lower tax bill and simplify the tax filing process. However, both spouses must agree to file jointly to be able to do so. If either of you is unwilling, then you'll both have to file "married filing separately."

Typically, if both parties choose to file taxes jointly as they're moving through the divorce process, there will be a written agreement in place regarding how any refund or liability is to be shared. If there is no agreement, it's common for one of the attorneys to hold a refund check in their escrow account until an agreement is reached.

3. Why would parties file taxes as "married filed separately" in the middle of a divorce?

In most of the cases that we see, when parties choose to file separately, it's because they are involved in a high-conflict divorce. As a result, the communication necessary to get the taxes filed may actually cost more than any tax savings they would realize from filing jointly.

Parties may also choose to file as "married filing separately" if they are concerned that their spouse has not been forthcoming with financial information and are worried about an associated tax liability. "Married filing separately" may provide better protection from liability for taxes owed.

4. What if we file jointly, and I later find that my spouse did not disclose all of the information needed to file accurate returns?

Innocent spouse relief is an IRS procedure that allows people to avoid paying additional tax, interest, and penalties if a spouse or ex-spouse didn't report income, incorrectly reported income, or improperly claimed tax deductions or credits. 

Requesting innocent spouse relief is a process that can take up to six months. Keep in mind that the IRS reserves the right to approve or deny the request. You can read all the details about innocent spouse relief in IRS Publication 971.

Ultimately, it's up to you and your spouse to determine how you want to file taxes if you're not yet divorced. A tax professional can tell you which filing status will save you the most in taxes, but that's not the only consideration.

Related post: A Checklist for Preparing to File Taxes After a Divorce


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