Once the divorce is final, you are no longer married and therefore you may no longer file a joint tax return. Even if you were married the entire year and you divorced on December 31st, it causes you to be ineligible to file a joint tax return for that particular tax year. Depending upon the respective incomes of you and your former spouse, you may wish to wait a couple of days and have the divorce final in the subsequent tax year so you can file jointly in the preceding tax year.
You cannot “force” a spouse to file jointly with you. However, the IRS does not consider community property laws since they operate under federal law, not state law, which community property is. Therefore, if you are the higher earning spouse, it probably makes sense from a tax standpoint to file jointly since this is a better tax bracket than married filing separate. Also, since you are the spouse earning the money, you are the one that is going to have to declare the income on the tax return you file.
However, if the lower earning spouse acts out of vengeance and deliberately files a married filing separate tax return during the year you were married for the sole purpose of having the higher earning spouse declare those higher earnings on his or her tax return so the higher earning spouse pays all the taxes, the higher earning spouse could contend that the vengeful lower earning spouse that filed the married filing separate tax return acted out of bad faith and could seek reimbursement and/or sanctions against the vengeful filer for breaching their fiduciary duty to the community. This is especially true where the earnings that the higher earning spouse must declare on his married filing separate tax return is community earnings due to the fact it was earned during the time the parties were married and living together.
Again, this is the reason it is important for parties going through a divorce to seek legal counsel from an experienced family law attorney who has a tax background before filing their taxes. Also, there is an IRS code that says that tax advice sought from an attorney can be deducted on the client’s tax return.
John Gilligan is a founding partner at the family law firm offices of Brandmeyer Gilligan Dockstader & Davidson, LLP in Long Beach, CA. John has over 30 years of experience handling family law, probate litigation, and estate planning matters. He can be reached directly at 562-431-2000.