One of the most important aspects of divorce is how to divide assets and property between spouses, and that's not as cut-and-dried as it might seem on the surface. In addition to who gets what, there are numerous tax implications—and that means it's time to do some serious tax planning.
The First Steps
“Courts require full disclosure of income, assets, and debt,” according to Susan Carlisle, a forensic certified public accountant specializing in family law and taxes in Los Angeles. Full disclosure means all of your financial information must be up to date, complete, and truthful. Carlisle advises that people facing divorce:
- Bring their bookkeeping and tax returns up to date
- File any unfiled tax returns
- Get copies of bank statements, tax returns, loan documents, and other financial paperwork
- Gather documents related to real estate, and note who is on the title to each property
Consider hiring a forensic accountant, even if you're already working with a tax professional to prepare your tax returns. A forensic accountant is a specialist in the type of accounting needed in legal matters.
Communicate honestly and openly with your accountant during your divorce. If you and your spouse already have an accountant who prepares your tax returns, your accountant will have a conflict of interest when it comes to providing both of you with advice. Just as each spouse hires their own attorney, having separate accountants frees the accountant from having any possible conflict in providing you with professional advice.
Tax-Planning Issues for Property Settlements
The Internal Revenue Service (IRS) generally doesn't recognize any gains or losses from the transfer of property during a divorce. Property transfers may trigger the interest of the IRS, however, if one of the spouses involved is a nonresident alien or if the property being transferred is covered by rules governing certain transfers in trust or stock redemptions.
Although you're not immediately taxed when the property is transferred between you and your spouse, whoever sells the property might incur taxes.
Your Primary Residence
If and when the house is sold, the spouse selling it might be able to exclude up to $250,000 in capital gains if they owned and lived there for at least two years in the five-year period leading up to the date of sale. This $250,000 exclusion is for each owner of the house. Any gains beyond that would be taxable.
Suppose both spouses own the house, which has potential unrealized gains of $400,000, which is calculated by taking the house’s current appraisal value and subtracting it from the original purchase cost. If the house is transferred to one spouse, and the other spouse is removed from the title, and then the owner of the house will be sitting on $150,000 of potential taxable gains—$400,000 in total gains less the $250,000 exclusion for one owner.
However, there's the potential to exclude the full $400,000 of gains. One possible tax strategy is for both spouses to stay on the title after the divorce. This gets the divorcing couple an exclusion of $500,000 rather than $250,000 if only one person were to remain on the title. The divorcing couple would have zero potential taxable gains on a profit of $400,000 after the $500,000 exclusion.
This strategy works because of an exception for divorcing spouses when satisfying the use test for taking the exclusion. The IRS considers you to meet residency requirements if your former spouse lived in the house under a divorce agreement.
There's no tax when transferring assets in a retirement plan, but tax will be due when funds are distributed from the plan.
Splitting up a 401(k) plan or similar pension account requires a qualified domestic relations order (QDRO). A QDRO is a "court order that assigns rights of an employee with a retirement plan to transfer some or all of the benefits to an alternate payee/spouse. It is sent to the plan administrator to divide the plan according to certain criteria," Carlisle says. How the 401(k) account is split is "spelled out in the QDRO."
The IRS treats retirement plan benefits received as part of a divorce settlement as if the recipient has received the benefits under their own retirement plan. The ex-spouse would even be able to roll over their share of funds from the retirement plan to another retirement plan. The rollover would be tax-free, and it would start being treated as the spouse's IRA on the date of the transfer.
Tax Planning for Securities
There's no tax on the transfer of stocks, bonds, mutual funds, or other securities held outside of retirement plans, but the tax will be due when the investments are sold at a gain. If you receive securities during a divorce settlement, your cost basis will be the same as your former spouse's.
The Concept of Trading Assets
Divorcing spouses will sometimes "trade" assets. For example, one spouse might transfer their share of the house in exchange for a portion of the other's retirement assets. But simply adding up all the assets and dividing them in half usually does not result in a fair division of property.
Divorcing spouses will want to discount the value of the assets by the expected taxes due when the assets are sold. In other words, the analysis involves "comparing after-tax dollars for each asset being traded," Carlisle says.
One spouse can provide cash to equalize the after-tax value of the property settlement. "An equalization payment is considered part of the property settlement and not taxable or deductible," according to Carlisle.
Tax Planning Issues for Financial Support
This issue is far more clear cut. Child support is "never taxable, never deductible," Carlisle says. Neither is it taxable income to the parent receiving it.
Alimony or spousal support used to be taxable to the recipient and tax-deductible for the spouse who was paying, but that changed under the terms of 2017's Tax Cuts and Jobs Act. Divorce agreements entered into and decrees issued before December 31, 2018, are still subject to the old rules, but the law treats alimony as tax-neutral after that date. That includes older agreements and decrees that were significantly reworked after December 31, 2018. It's taxable income to the spouse who earned it, regardless of whether they hand it over to their ex-spouse.
Planning for Social Security Benefits
Divorced persons can be eligible to receive Social Security benefits based on their former spouse's income if they meet five criteria.
- The marriage must have lasted 10 years or longer.
- They must be unmarried.
- They must be age 62 or older.
- The benefit that they are entitled to receive based on their own work is less than the benefit they would receive based on their former spouse's work.
- Their former spouse is entitled to Social Security retirement or disability benefits.
This presents a planning opportunity. Couples might want to delay finalizing their divorce so that they're married for at least 10 years. The divorced person "gets their own Social Security benefits or half of their ex-spouse's benefits, whichever is higher," Carlisle notes, and this doesn’t affect the other spouse's benefits.
Who Gets to Claim the Kids as Dependents?
Generally, the parent who has custody of a child for more than half the year will be eligible to claim them as a dependent. That's because one of four criteria to claim a qualifying child as a dependent requires that the child reside for more than half the year in the same home with the person claiming them. If the child resides exactly 50% of the time with each parent, the right to claim them goes to the parent with the higher adjusted gross income (AGI).
Giving the Dependent to the Other Parent
The parent with whom a child resides for more than half the year can allow the other parent to claim the child as a dependent. This process is called "releasing the dependent's exemption," and it's accomplished by completing and signing Form 8332 so the other parent can submit it with their tax return.
If you do agree to release the child's exemption, be sure to abide by your agreement. If, for some reason, both parents try to claim the same child as a dependent, the IRS will get involved to try to figure out which parent is truly eligible. You can avoid such IRS scrutiny by sticking to your agreed-upon arrangement for claiming dependents.