A Main Line Family Law Attorney Advises: How do you File your Taxes when your Divorce is Pending?
As Main Line family law attorneys, we know that when a divorce is pending, clients are often confused as to whether they are considered “married” or “divorced” for tax filing purposes. Since there is no “legal separation” document that is filed in Pennsylvania, you are not considered divorced in Pennsylvania until a divorce decree is issued by the Court. Thus, even if you are separated, you are still considered “married” for tax filing, and other, purposes.
Tax filing status is determined based on an individual’s status on the last day of the year (December 31st). If no divorce decree has been issued, then that individual would still be considered “married” for tax filing purposes, and thereby, able to file their taxes either as “married filing jointly” or “married filing separately.” However, if the divorce decree issues on December 31st, then that person will not be able to file jointly with their ex-spouse for that year. In such case, the individual would only be permitted to file as “single” or “head of household,” depending on other factors.
In cases where both parties are salaried wage-earners, who receive W-2’s, it would usually make the most sense to file “married filing jointly,” if possible, so as to yield the least amount of taxes paid by the family, and the highest amount of a refund received by the family. In cases where one party is a business owner, it might not be advisable for the spouse arguing against what the business-owner spouse is stating as their income to file a joint tax return with that spouse, as they could be bound to agree to such stated income that they virtually signed off on when they filed their taxes.
If you cannot file “married filing jointly,” or it is not advisable to do so, then the next most favorable tax status would be “head of household.” However, you can only file as “head of household” if you have at least 50% (or more) of the custody time of the dependents and are claiming those dependents (children), i.e. that parent’s home must be the “main home” of the children. For example, if Mother has primary custody of the parties’ minor child, but works minimally and doesn’t claim her on her taxes, the Father can claim her on his taxes, but would not be able to assert a “head of household” status, as he would only be permitted to file as “single” or “married filing separately,” depending on whether the divorce decree was issued by the Court or not. If a parent is living in a rented apartment, they cannot utilize this tax status either, as they must have a household for which they have paid more than half the cost of maintaining it, including paying more than half of the mortgage, taxes, repairs and food. This does not include clothing, educational, or medical expenses for children. This is limited to expenses to sustain the household.
With all of this said, you should always consult your accountant on these matters in advance of filing your taxes, but you should also be consulting with your divorce or family law attorney, as the filing could have implications in the overall equitable distribution and divorce case. If you are unsure how to file, you can always file an extension, so that you have more time to determine what is best with the divorce pending. However, you must be cautious in how you file your extension under I.R.C. §6013(b). If you file a joint extension, you cannot later decide to file separately. However, if you file separate extensions, you may later elect to file a joint tax return together.
The Main Line family law attorneys at Vetrano|Vetrano & Feinman, LLC can help you navigate how to best file your taxes by guiding you towards the correct status to use. Please be sure and contact us before you file your taxes incorrectly and are then forced to file an amended tax return, or perhaps lose certain rights.
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