An individual taxpayer must elect from one of four tax-filing statuses when filing his or her return:
- Married filing jointly;
- Married filing separately;
- Head of Household; or
- Single
To determine which status to elect, the individual taxpayer must look to the criteria set forth by the Internal Revenue Service. See IRS Publication 504 and consult with your tax professional.
During or following a divorce, filing status an individual taxpayer is eligible to select is based, in part, on the individual taxpayer’s marital status on the last day of the year. If the individual taxpayer is married as of December 31st, then the individual taxpayer will be filing as Married filing jointly, Married filing separately, or possibly Head of Household. If the individual taxpayer is divorced as of December 31st, then the individual taxpayer will file as either Single or Head of Household.
A divorce court cannot require a party to file with a specific status. See Leftwich v. Leftwich, 442 A.2d 139 (D.C. App. 1982). However, the court can enforce an agreement between the parties to file with a specific status. See Johansen v. Johansen, 365 N.W.2d 859 (S.D. 1985). The court can also consider the impact that the filing status has on the marital estate in making a division of property. See Wadlow v. Wadlow, 200 N.J. Super. 372, 491 A.2d 757 (App. Div. 1985). If the parties initially filed a joint return, they can amend the return and file separately. However, if a party initially filed a separate return, he or she cannot amend the return and file jointly at a later date. In the absence of any agreements between the parties, each taxpayer will elect his or her filing status.
It is also important to note that the federal tax code provisions do not deprive the dissolution court of jurisdiction to enter orders as between the parties. See Cohan v. Cohan, 372 P.2d 149 (Colo. 1962) (court may consider the effect of state and federal income taxes on its contemplated award in a dissolution of marriage action); In re Marriage of Finer, 920 P.2d 325 (Colo. App. 1996). Further, the court may apportion tax liabilities assessed on the parties’ joint return in proportion to each party’s earned income for the relevant tax year, even though collection efforts by the Internal Revenue Service would be joint and several. In re Marriage of Tanous, 730 P.2d 907 (Colo. App. 1986). In re Marriage of Lafaye, 89 P.3d 455, 461 (Colo. App. 2003)
Couples divorcing after 2008 will also likely need to consult with their attorneys to see if it is necessary to obtain and/or file IRS Publication 8332. There are two purposes for this form. If you are the custodial parent, this form may be used to either release a claim to exemption for your child so that the noncustodial parent can claim the exemption, or revoke a previous release of claim to exemption for your child. This requirement should be considered at the time of drafting of a separation agreement or permanent orders. Our experienced divorce lawyers at Folkestad Fazekas Barrick & Patoile, P.C., can guide you through the process and put you in touch with seasoned tax preparers who can assist you with the changes that divorce places on tax filings.
Our attorneys serve the Front Range Area, including the Denver metro area with offices in Castle Rock, Douglas County, Colorado. Providing representation in the local, state and federal courts including Douglas County, Elbert County, Arapahoe County, Denver City and County, El Paso County, Adams County, Eagle County, Pitkin County, and throughout the Colorado courts.
