Anyone who has been through the divorce process knows that it is more of a marathon than a sprint. If you think you crossed the finish line with a final divorce decree in 2015, you still have one more decision. How will you file your taxes?
Filing jointly is the general default, but it’s not a requirement. In some circumstances, it may make more sense to file separately. You need to understand the risks and benefits of each.
Choose wisely. No do-over exists to amend an election from married filing jointly to married filing separate.
Joint and several liability
There is no arguing that filing jointly carries benefits. However, if you will owe taxes, you need to understand how joint and several liability works. It means that if or when your ex-spouse refuses to pay part of the tax debt, the Internal Revenue Service can go after you for the full amount.
Before you sign a joint return or prepare one and struggle to reach your ex- for a signature, consider a hypothetical based on a real tax court case.
When being nice backfires
Mr. and Mrs. K separated in 2015 and received a final divorce decree. While separated, Mr. K finally had his disability claim approved and put the back benefits in his own account. Social Security did not withhold any taxes from the payment.
Mrs. K worked throughout 2015 and had taxes withheld from her pay. She had always done the taxes and used software to prepare their last tax return. The withholdings paid by Mrs. K were not enough to offset the tax due on the Social Security benefits and the couple owed taxes. They agreed to split the amount due and filed the tax return.
Then Mr. K refused to pay anything.
No good options
The joint filing limits Mrs. K’s options. She could file Form 8857 – Request for Innocent Spouse Relief, but these are often difficult to obtain and still have a filing deadline of two years. The other option to avoid collection efforts such as a tax lien, levy or wage garnishment would be to pay the full balance.
When your last tax season results in a large tax liability, discuss whether filing separate may be preferable. A tax attorney can help if you filed jointly and were later surprised to receive an IRS collections notice.
Source: Forbes.com, “You Do Not Have To File A Joint Return And There Are Some Reasons Not To,” Peter J. Reilly, Feb. 1, 2016