Federal Income Tax and Divorce

Get the answers to a variety of questions about how divorce affects taxes.

Talk to a Local Family Law Attorney

Enter Your Zip Code to Connect with a Lawyer Serving Your Area

Gavel and Scales

My spouse and I have been separated since May of last year, and now it's time to file taxes. Can we both file as single?

If you're not yet legally divorced, you can't file as single, although you can file separately. (Your filing status would be married filing separately.) You can also file jointly if that's more advantageous. 

(For more on this, please see, Should We File Joint or Separate Tax Returns During a Divorce?)

I moved out of my house on July 1, but was not divorced at the end of the year. I have one minor child. Can I file as head of household and take the Earned Income Credit? Can I also claim child care expenses?

You do not qualify for head of household filing status because you and your spouse have not lived apart for the last 6 months of the taxable year and you are not considered unmarried. Your filing status for the year will either be married filing separately or married filing jointly. If you file separately, you will not qualify for the Earned Income Credit and you cannot claim a credit for child care expenses. If you file a joint return with your spouse, you may be eligible to claim these credits. See IRS Publication 17 for the rules on these credits. 

I am divorced and pay child support. My children live with their mother and she claims them on her tax returns. Can I claim head of household?

No. Your children must live with you at least half the year in order for you to claim head of household status.

I am divorced with one dependent child. This year my ex-spouse will claim the child as an exemption. Does this mean I cannot qualify as head of household?

You can file as head of household even though you do not claim your unmarried dependent child as an exemption if you meet all of the following requirements: (1) You are unmarried or considered unmarried on the last day of the year. (2) You paid more than half the cost of keeping up your home for the year. (3) A qualifying child lives with you in the home for more than half the year (except for temporary absences such as school). To see the requirements for being considered unmarried, look at IRS Publication 17.

Can my ex-spouse and I split the dependent exemption for our child and each claim it for six months each year?

No. You can't split the dependency exemption, but you can each take the exemption in alternate years. The custodial parent is generally assumed to have provided more than half of the child's support and is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child's support if the other parent signs a Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, or a substantially similar statement. The noncustodial parent must attach Form 8332 to his or her return. If the custodial parent releases the exemption, the custodial parent may not claim the Child Tax Credit.

My 7-year-old son lived in my household for seven months of the year, and I provided all of his support. I paid child support to his other parent for the other five months. Can I claim my son as a dependent and for a child tax credit without Form 8332?

No, you will need to attach Form 8332 or a written statement from the other parent with the same general contents as a Form 8332 to your tax return. 

I have a court order that says I have the tax exemption for my minor child until further order of the court. Can I just send a copy of the court order with my prepared taxes, or do I have to have a waiver signed by the other parent?

The court order isn't enough. You must obtain a signed Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, or a substantially similar statement.

I went through a divorce last year and paid a lot of legal fees. Are these deductible on my tax return?

Legal fees incurred or paid for a divorce are personal in nature, and are not generally deductible. However, legal fees incurred or paid in order to produce or collect taxable income may be deductible. Alimony is taxable income, so you may legal fees that you paid for establishing or collecting alimony. 

Can I deduct alimony paid to my former spouse?

If you are divorced or separated, you may be able to deduct the alimony or separate maintenance payments that you are required to make to your spouse or former spouse, or on behalf of that spouse. Make sure that your divorce judgment or settlement agreement identifies the payments as alimony.

Talk to a Lawyer

Want to talk to an attorney? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys
LA-NOLO4:DRU.1.6.5.20141029.29183