It’s April! Spring flowers! Beautiful warm, but not hot, weather! And, yuck, taxes! Taxes when you’re going through a divorce can be complicated, and add more stress to an already stressful situation. Do you file a separate return or a joint return? If you are filing separate return, who claims the house, the kids, etc?.

With regard to support, if you are separated and paying spousal support to your spouse, the support paid to the spouse is only deductible if you are filing a separate return and there is a court order for the support. Further, the only support deductible is spousal support, not child support. If you are filing a joint return, there is no deduction for spousal support, as you are claiming your spouse as a dependent.

What about the kids, who claims them? If you are filing a separate return, the general rule is that the person who had the children more than 50% of the time is the person who claims the children. If there is a court order which gives one parent more time with the children, that person will be able to claim the children. If you are the parent who has less time you may still be able to claim the children; however, the other parent must release the claim by filling out IRS Form 8332. It’s very easy to go on line (I just googled it ? IRS Form 8332) and print out a copy of the form. You will need to attach the form to your tax return if you are the non-custodial parent. If you are already divorced and have a Judgment which gives you the ability to claim the children as exemptions even though you do not have primary physical custody, make certain the exact language of the IRS form is in your Judgment. Better yet, have the custodial parent sign the form for you anyway. Beware though, if you are behind in child support payments, you may lose your right to claim the children on your taxes. Further, the custodial parent can revoke the right for the non-custodial parent to claim the children. So, you will need language in the Judgment to protect you to make certain this cannot happen .

Last, with regard to the family residence, that can be more complicated, as there are other factors to be taken into consideration, such as credits and reimbursements related to making of the house payments and fair market rental value if one of the spouses has moved out. If both spouses lived in the home the entire tax year, and are filing separate tax returns, then they should each take one-half of the deduction for interest and property taxes. However, there are so many factors that come into play here you should consult with both your attorney and your tax advisor.

One more thing. Remember to ask your family law attorney to specify on your invoice time they charge you for discussing taxes. Attorney fees paid to your family law attorney are not generally deductible; however, when you discuss taxes, that portion of the bill is deductible.


Pamela Edwards-Swift, Certified Family Law Specialist, 2010, 2011, 2012, 2013 & 2014; Southern California Super Lawyer