By Jennifer M. Paine
Your tax filing status, for most filers, is determined on December 31. If you were still married on that day, then you and your spouse can file a return with the status “married, filing jointly.”
This is a preferred status, and there are many advantages to filing taxes with it, such as the exclusion limits for capital gain on the sale of a principal residence. It may be, and often is, financially beneficial to file with this status even if you are divorced or divorcing for this reason alone.
However, joint filers are – you guessed it – jointly liable in the event of an audit. There are limited exceptions for innocent spouses, who were unaware of the other’s tax wrongdoing, and injured spouses, who would face a hardship in an audit.
But these are defenses that you would offer when you are audited, which you want to avoid, and are a difficult sell when you file taxes during a divorce and, presumably, have discovery tools at your disposal to determine whether your spouse’s income is reported accurately.
To protect yourself, you might include a paragraph in your divorce settlement agreement or divorce decree that requires the wrongdoing spouse to reimburse the other’s attorney fees, costs, and any taxes paid as the result of an audit. These, of course, are options to discuss with your CPA and divorce lawyer.
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Note: This information is general in nature and should not be construed as tax advice. You should work with your attorney or tax professional to determine the tax advantages that will work best for your situation.
Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.