What You Need to Know About Taxes in a Gray Divorce
If you're not careful about how assets are divided or sold, you could get hit with a big tax bill.
Editor’s note: This is part nine of an ongoing series throughout this year focused on helping older adults navigate the financial difficulties of gray divorce. See below for links to the other articles in the series.
Divorce may be less of a certainty than death or taxes. But the latter can take a big bite out of a divorce settlement.
Those of you getting divorced later in life, also known as a gray divorce, will have less time to recover from the financial hit of divorce and will want to make sure that Uncle Sam takes no more than you are legally required to pay.
Sign up for Kiplinger’s Free E-Newsletters
Profit and prosper with the best of expert advice on investing, taxes, retirement, personal finance and more - straight to your e-mail.
Profit and prosper with the best of expert advice - straight to your e-mail.
Divorce settlements are generally not taxable events, meaning that the division of marital property doesn’t trigger immediate tax liabilities. IRS Revenue Code 1041(a) states that no gain or loss shall be recognized on the transfer of property from an individual to a spouse or a former spouse if that transfer is incident to divorce.
But transferring property is different than selling property. And sometimes spouses will need to sell assets after divorce to raise cash. You need to be aware of the tax effect on the sale of that property now or in the future. You may end up with less money from your divorce settlement than you planned.
Property division and cost basis
When dividing marital property, it’s key to understand the cost basis of each asset.
The cost basis of an asset is, essentially, the original purchase price. With real estate, the cost basis can also include improvements. If you sell an asset with a low basis, you may face significant capital gains taxes on those unrealized gains. For instance, if one spouse keeps an investment account with a low basis while the other takes an account with a higher basis (or even unrealized losses), the spouse with the lower-cost-basis assets may end up paying more in capital gains tax later on.
Another thing: Many attorneys fail to examine their client's tax returns to see if tax-loss carry-forwards (TLCs) are present. These TLCs have value. They can be used to offset capital gains in the future and should be considered on the marital balance sheet.
Capital gains taxes and the primary residence exclusion
If the marital home is sold as part of the divorce, both spouses may be eligible for the primary residence exclusion of up to $250,000 in capital gains ($500,000 if filing jointly) if they meet the ownership and use requirements. Timing the sale before the divorce is finalized or both spouses move out can maximize this exclusion.
A Certified Divorce Financial Analyst (CDFA®) can work with your tax professional to help you review strategies to qualify for the maximum exclusion. (Note that investment properties don't qualify for the primary residence exclusion.)
Tax-efficient asset division
Brokerage accounts may carry unrealized capital gains, meaning future taxes will be owed upon sale.
Retirement accounts like traditional IRAs and 401(k)s, which provide a tax deduction on the contribution, are subject to income taxes upon withdrawal, so their value may be less than their current balance, compared to an after-tax account.
Consulting a tax pro or CDFA® to calculate the tax-adjusted value of assets can help ensure a fair division.
Avoiding early-withdrawal penalties
Retirement accounts are often one of the largest marital assets. But watch out: Dividing them incorrectly can trigger taxes and penalties.
A qualified domestic relations order (QDRO) is a court order required to divide certain retirement accounts, such as 401(k)s and pensions, without incurring taxes or early-withdrawal penalties. The receiving spouse (referred to as the alternate payee) can roll over their share into their own retirement account, such as an IRA, ensuring the funds remain tax-deferred.
But if you need this money for immediate expenses and are under age 59½, be careful. Rolling those retirement funds into an IRA and then taking a distribution will subject you to a 10% early-withdrawal penalty. However, the IRS allows you to receive this money without a 10% penalty if you take it directly from the 401(k) you've been awarded pursuant to the QDRO before rolling it to an IRA. Of course, you still need to pay income taxes on the distribution.
Tax filing status
Your tax filing status for the year is determined by your marital status on December 31. If your divorce is finalized before that date, you cannot file jointly, even if you were married most of the year.
Carefully planning the timing of the divorce can help you take advantage of the most beneficial filing status. Sometimes the difference is enough to change the anticipated date of divorce from the end of a calendar year to the following January. Of course, filing jointly means sharing liability for any taxes owed. If your soon-to-be ex has complicated financials or dubious deductions, it may be safer to file separately. You should always consult with a tax professional to determine which option makes the most sense for you.
The divorce team
Navigating the murky tax waters of divorce requires the expertise of tax professionals, divorce financial planners and divorce attorneys, all working together. These professionals can:
- Review the tax implications of various asset divisions
- Structure settlements to maximize tax benefits for both parties
- Help you to prepare for post-divorce tax obligations and opportunities
While hiring advisers adds to the upfront cost, it is likely you will need their help anyway, and their guidance can save significant amounts in taxes and financial stress in the long run.
Related Content
- Introduction: Happy New Year: Let’s Get a Divorce
- Part one: How Does a Gray Divorce Affect Social Security Benefits?
- Part two: In Gray Divorce, Two Financial Planning Yardsticks Are Key
- Part three: Don’t Forget to Update Beneficiaries After a Gray Divorce
- Part four: What Is a Lifestyle Analysis in Divorce?
- Part five: How Much Will Getting Divorced Cost You?
- Part six: Think of Prenups and Postnups as Financial Planning Tools
- Part seven: Would a Reverse Mortgage Work for You in a Gray Divorce?
- Part eight: How Retirement Plans Are Divided in Divorce
Get Kiplinger Today newsletter — free
Profit and prosper with the best of Kiplinger's advice on investing, taxes, retirement, personal finance and much more. Delivered daily. Enter your email in the box and click Sign Me Up.
Andrew Hatherley is the founder of Transcend Retirement, LLC and Wiser Divorce Solutions, LLC and the host of The Gray Divorce Podcast. After going through his own mid-life divorce, Andrew decided to help other people avoid the financial and emotional stress so common to the process. He earned the designation Certified Divorce Financial Analyst® and is trained in mediation and Collaborative Divorce. He is also a member of the Amicable Divorce Network.
-
Kiplinger Outlook: Telecom Companies Brace for Tough Times
The Letter The telecom industry is entering a new era that threatens profitability. But the coming Trump administration will make it easier for the major players to adjust.
By John Miley Published
-
What Does the Trump Presidency Mean for the Fed?
We take a look at what Donald Trump's potential economic plans could mean for inflation, the Fed and Jerome Powell. Here's what you need to know.
By Charles Lewis Sizemore, CFA Published
-
What Does the Trump Presidency Mean for the Fed?
We take a look at what Donald Trump's potential economic plans could mean for inflation, the Fed and Jerome Powell. Here's what you need to know.
By Charles Lewis Sizemore, CFA Published
-
Time for Some Fall Financial Maintenance: Here's a Checklist
As you rake the leaves and clean the gutters, you should also consider tackling seven key year-end planning chores.
By Adam Frank Published
-
How Women Can Navigate Competing Priorities as They Age
It takes planning and some frank conversations, but women can aim for a happy and financially secure retirement while supporting loved ones. Here's how.
By Steph L. Wagner Published
-
Medicare Premiums 2025: IRMAA for Parts B and D
Medicare participants with an income above the threshold must pay a surcharge for Medicare Part B and Part D based on their income.
By Donna LeValley Published
-
What You Will Pay for Medicare in 2025
Medicare premiums for 2025, and the cost of Medicare Part A, Medicare Part B and Part D premiums and deductibles, have gone up. Here is how much you'll pay in 2025.
By Donna LeValley Published
-
Why Is Warren Buffett Selling So Much Stock?
Berkshire Hathaway is dumping equities, hoarding cash and making market participants nervous.
By Dan Burrows Published
-
A Sabbatical May Be a Smarter Move than Early Retirement
A sabbatical can help you get over burnout, explore a new career or hobby and won't break your retirement if done right.
By Jacob Schroeder Published
-
Seven Retirement Moves to Make Before 2025
From applying for Social Security and donating to charity to maximizing your savings accounts, ere are retirement moves to make before 2025.
By Kathryn Pomroy Published