Dependency Exemptions

In a divorce, the parents may agree in a settlement about which parent gets to claim which dependent child or children.  If the parents do not agree,  the court may decide and hold a spouse in contempt for not following its determination.  However, presenting a court case about dependency exemptions is complicated and best done after speaking with a lawyer.  The case may involve expert testimony, such as from an accountant.  If parents do not agree upon the sharing of dependency exemptions, IRS rules will dictate who may claim dependency exemptions.  That choice may depend on which parent has the majority of overnights with a minor child and which parent has paid the majority of the expenses of a dependent child over 18.

In divorce settlements, dependency exemptions can sometimes be used to benefit both spouses.

Generally, the settlement agreement will state who is entitled to claim which of the children, as well as various conditions under which this will change (such as when only one of multiple children remain eligible to be claimed as a dependent).  But the agreement only determines what you and your spouse have decided about who is entitled to the exemption.  Under the Internal Revenue Code section 152(e), the exemption belongs to the custodial parent unless the custodial parent executes a release.  That release must be signed by the custodial parent and attached to the non-custodial parent's return for any year in which the non-custodial parent claims an exemption deduction.  The release can cover a single year, specific multiple years, or all future years. The IRS form for the release is Form 8332 (pdf). Read the law: 26 USC § 152

Filing Status and Final Return

Filing Status - Barring remarriage, a non-custodial parent generally will be "single" and a custodial parent may be "head of household."  A planning idea that can be a win-win in joint custody cases where there are multiple dependent children, though, is to have each parent be a "custodial parent" with respect to at least one child.  In that way, both parents may qualify for "head of household" status.  "Head of household" tax rates are more beneficial than "single" tax rates.

Final Return -

A taxpayer's marital status is determined as of December 31.  So, if you are still married on December 31, generally the choice is between "married filing separately" and a joint return.  If you are divorced by December 31, generally the choice is between “single” and “head of household” if neither parent is remarried.  If the couple have been living apart for the last six months of the year, it is possible that one or both might qualify as "head of household."

The decision to file a joint return can have an impact beyond the tax difference between a joint return and two separate returns.  Taxpayers have "joint and several liabilities for deficiencies" on a joint return.  You may be liable for any deficiencies that the Internal Revenue Service finds in your joint return, even if the result of errors in your spouse’s reporting.  If you are concerned that the other spouse might have unreported income or be claiming improper deductions, it may be wise not to file joint income tax returns.  If you file separate tax returns while married, this can impact how you each claim deductions (itemized or standard) and who claims which deductions.

If you decide to file a joint return, you cannot change your mind and file a separate return later.  But if you file a separate return, it is possible to file an amended joint return later.  You and your spouse can also sign an agreement about any problems arising from past joint tax returns and how future tax returns, refunds, and liabilities will be handled as between you and your spouse.  Here is an option for how to approach the situation if you and your spouse could get substantial savings from a joint return, but you are concerned about being saddled with the other spouse's deficiency.  You and your spouse can file separate returns.  If you later learn that the other spouse's return had no deficiencies, you and your spouse can file an amended joint return prior to the expiration of the statute of limitations, (generally, three years from the date the original return was filed, or two years from the time the tax was paid, whichever is later). Read the Law: 26 UCS §6013(b)(2).

 Special Note: If your spouse has (in the past) hidden taxable income from the IRS and you signed a joint tax return for those years, you may be responsible for past due taxes if s/he is caught.  The IRS has a special "innocent spouse tax relief" provision that can help if you have been held responsible. The IRS form for requesting innocent spouse relief is Form 8332.

Allocation of income from joint bank and brokerage accounts

If you don't file a joint return, a number of complications may arise.  If you and your spouse had planned to pay your tax bill by having the taxes withheld through each of your W-2's, then there is no way to shift the withholdings to another return.  If you and your spouse made joint estimated tax payments, they may be divided in whatever way you and your spouse agree.  If there is no agreement between you, the IRS will divide them based on relative tax liability IRS Pub No. 505.

If it becomes clear before all estimated tax payments are made that you and your spouse may file separate returns, then the person making the payments should submit them as individual estimated tax payments.

In addition, if you don't file a joint tax return, you and your spouse should decide who is to report joint income and which of the parties will claim joint deductions.  This may seem to be a simple matter but sometimes it is not.

For example, disputes frequently arise over which spouse is entitled to claim mortgage interest and real property tax deductions, who is entitled to claim charitable deductions paid from a joint bank account, and how to handle overwithholding and underwitholding of taxes.  If you have questions like these, talk with an accountant or tax advisor.  The IRS is more likely to audit you if both spouses separately try to claim the deductions.


Edited by P. Lindsay Parvis, Esq., Dragga, Hannon, Hessler & Wills, LLP; and Eric J. Rollinger, Esq., Stein Sperling Bennett De Jong Driscoll, PC.

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