Board-certified family law attorney Jaime Davis and her guests provide information and tips for getting through a separation and divorce without destroying family relationships or finances. From marriage therapists and financial planners to private investigators and parenting coordinators, learn how to navigate divorce without destruction.
Jaime - 00:00:05:
Welcome to A Year and a Day. I'm Jaime Davis, board-certified family law attorney at Gailor Hunt. On this show, I talk with lawyers, psychologists, and other experts with the goal of helping you navigate divorce without destruction. In this episode, I'm talking with Hubert Johnson. Hubert is a seasoned tax attorney with 15 years of experience in the field. He also serves as a tax professor and lecturer, sharing his expertise with students and professionals alike. Hubert co-wrote two books on tax law and is the host of the popular TV show Taxes Made Easy, which airs weekdays in Texas and Louisiana. With his extensive knowledge and practical approach to tax issues, Hubert is dedicated to helping individuals and businesses navigate the complexities of taxation. Thanks for joining me, Hubert.
Hubert - 00:00:58:
Thank you for having me.
Jaime - 00:01:00:
So how does divorce typically affect someone's taxes? And what should people know about the tax changes that come along with divorce?
Hubert - 00:01:12:
Well, again, there's always a lot of changes and adjustments that need to be made. The number one thing is there's usually one person that handles the taxes, handles the finances, and it's the other person that usually doesn't know what's going on. And it frequently happens where there's two people that don't know what's going on. And so if you if you are not the one in charge, if you haven't been managing the taxes or. Your spouse has been using their CPA, someone they know and have a relationship with, the first step is really to get informed because you have to file differently. Things are claimed differently. But the biggest thing you want to make sure is that you don't get stuck with tax debt that really is your spouse's tax
Jaime - 00:01:55:
debt. Yeah, that is a great point. I see that so often that one spouse or the other just doesn't have the information. And I'll ask them, I'll be like, hey, do you have your tax returns from last year? And they're like, I think so. Maybe I'll have to find those. And really and truly, they just, if anything, signed off on it and really didn't participate in the preparation of the return at all.
Hubert - 00:02:19:
And people that don't have information and they can't get it from their CPA, they should be able to go to their CPA. They're represented just as much as the other person. I highly recommend people, first of all, get a second opinion. Go to someone else. And two, the IRS, one of the things I can praise about the IRS is irs.gov. People can go on, set up their own tax account, get their own tax return transcripts for the past three years, as well as other information, see what really is under their social security number. And getting informed really helps you plan and go through divorce.
Jaime - 00:02:55:
Yeah, that website can be an invaluable resource to folks who don't think they have access to their tax information. And they really do. They just have to create an account and log on and it's right there.
Hubert - 00:03:05:
One thing I'm seeing some CPAs highly recommend is that you set up your own PIN as well, which means no one can, even if they have your social, even if they have your personal information, you know, I know that this is divorce without destruction, but you also want to protect yourself because I do say it to anything theft, people dropping 1099s on ex-spouses or soon to be divorced spouses that are incorrect, that are fraudulent. If you put your own PIN, nobody can file for you and any return filed without your PIN will get rejected. Puts you in control of your own tax return and your social security number.
Jaime - 00:03:41:
Yeah, that is a great safety net for folks, for sure. So how might someone's filing status change following a divorce?
Hubert - 00:03:52:
Well, it might change before divorce. If you know someone has a business and they're not on top of their filing status or if they're owing, you can choose, even though you're married, to file married filing separate. And I've seen that same marriages. Where one party just doesn't want to have anything to do with the other person's tax issues, and they file separately, and then the IRS will only go after the person's, the other individual's, for the tax debt. So they don't have to worry about their bank accounts hit, their assets being hit, as long as their partner's social security number is not attached to it. So it all follows their social security number. So if you're preparing or if you're considering divorce because of this, it can save your marriage to just separate yourself financially from the spouse that is having these problems. Now, once you decide on divorce, you need to make that decision how you're going to file, who's going to claim the children. I see a lot of issues where people agree to things going through the divorce process and then don't follow through with them. So number one thing is protect yourself. And sometimes that means assuming tax debt or letting the other person claim children. Which kind of flies counter to what most people think.
Jaime - 00:05:12:
So is there any downside to filing married filing separate?
Hubert - 00:05:17:
Yes, it's not as favorable as married filing joint, which is why most people file married filing joint. So you pay a little bit more in taxes. But it's well worth it if the other person has tax debt, especially in the years that you're filing. For example, for 2024, if someone hasn't been paying taxes for 2024, you've been living with them. If you file separately for them by April 15th. The IRS cannot come after you at all for their tax debt because it's just going to be under their social security number.
Jaime - 00:05:51:
Can you explain the tax treatment of alimony payments and what that means for the person paying alimony as well as the recipient?
Hubert - 00:06:01:
Sure. So alimony changed in 2017 with the Trump tax cuts, the TCGA. And right now there's no, it used to be where if you paid alimony, you would get a tax break. You wouldn't be taxed on that income. However, that's one thing that changed that you can't deduct that anymore. It's taxable. Whoever makes the income, there's no deduction for paying alimony. And it's the same with child support now. And child support was that way before. There's no change there, but alimony and child support are the same. So you can't get a deduction or reduce your tax base by paying more in alimony or child support.
Jaime - 00:06:41:
Yeah, that change actually helped make the job of the divorce lawyer easier. Back when alimony was taxable to the recipient, we often had to hire CPAs to assist us with tax analyses to make sure that our alimony amounts we were requesting were high enough not only to cover the dependent spouse's expenses, but also the tax consequences that they were going to have as a result of those payments.
Hubert - 00:07:06:
And there's plenty of other things when you go into assets where tax analysis can be very helpful, especially in the division of assets. So I don't know if that's where you want to go next.
Jaime - 00:07:18:
Yeah, absolutely. So let's talk about that. When it comes to dividing property in a divorce, what are the tax implications that people should consider when they are deciding whether or not to request certain assets? Like, do they want the house? Do they want the brokerage account? Do they want the retirement account? Like, what things should they consider?
Hubert - 00:07:39:
Well, anytime you receive an asset, when you go to liquidate that asset or turn it into cash, there's always tax consequences. So cash is key, especially if it's in a savings account. If it's in a brokerage account, any kind of investment, you're going to have to consider capital gains. If you're in a home, you have to look at the equity. So if you have a home that you're going to have to sell, I would look at the tax consequences because $200,000 in equity in a home is not the same as $200,000 in cash or even potentially a retirement account if it's like a Roth IRA and the taxes have already been paid. So the value of things vary greatly and can vary greatly in the future when you go to liquidate an asset. And one of the big mistakes I see is where people, they do a 50-50 split of tax debt. It's one of the big mistakes that I see people make because the IRS doesn't care. However, they'll respect most of the divisions within an MSA or settlement agreement. But if you do a 50-50 split, they don't care. They'll go after both people if your social security number is attached to that debt. Again, it always follows the social security number. So if you're the responsible person and you're making payments, you're doing what you're supposed to, and the other person flakes out. Or they could even qualify for some of the programs. They could do an offer on compromise and wipe out the debt under their social security number and leave the other person holding the bag. So what I suggest, if you know you're the more responsible party, assume the debt. And get other assets to compensate yourself for that. And then if you file an offer on compromise, You're not the one left holding the back. I mean, you can address it in different ways. But I get, especially if you're the more responsible party, it makes sense to assume that liability, get compensated through the marriage for it. And that way you don't have, you're not depending on someone that's not the most reliable.
Jaime - 00:09:45:
Yeah, that is an excellent point. I can see where that might go sideways if folks did agree to divide the tax debt and you ended up being the one holding the bag, so to speak, if the other person totally flaked out on it. So great point.
Hubert - 00:10:00:
Well, and that's the scary thing is, and I'm not sure how familiar you are with the financial side, but I know most or many divorce attorneys even have clauses in their contracts where they give zero tax advice.
Jaime - 00:10:13:
Absolutely.
Hubert - 00:10:13:
And it's very typical that the judges don't understand it either.
Jaime - 00:10:17:
So another mistake that I have seen, so I'm sure you have worked with lots of divorce attorneys. And when we are helping our clients figure out what a property division might look like, we create a spreadsheet. And it has a list of all the things and it has a column for each spouse and go down the spreadsheet and put the value of the thing in the column of the person who's going to get it. And occasionally, I've seen folks who throw the retirement accounts in with all of the other assets. And so they're counting an IRA the same as, let's say, a checking or savings account, which, based on everything you've said, is not correct. We need to be dividing those pre-tax assets, the 401ks, the IRAs, equally, as well as the, I'll call them post-tax assets, like the cash accounts.
Hubert - 00:11:07:
Right, or like a Roth account.
Jaime - 00:11:09:
Right.
Hubert - 00:11:11:
And taking into consideration any early withdrawal penalties. So if you're planning to take an asset that you need those funds to live on. It's at least a 10% penalty for early withdrawal if you are not retirement age. So take those into account as well.
Jaime - 00:11:30:
Are you aware of, so I know divorce lawyers go back and forth about this, and we, of course, like to err on the side of caution, but in terms of timing, do you think that there is Any particular reason for, for example, with the 401k, you can get that qualified domestic relations order entered, you can get it divided. But for an IRA, do you believe that the folks need to wait until that divorce goes through before they do that or risk potential tax consequences?
Hubert - 00:12:00:
Well, as long as you are rolling it over. To another qualified plan, you should be fine. But make sure, one, you're using a CPA that knows how to do a rollover, that makes sure to confirm it's done right with the IRS. I can't tell you how many times people have come to me and said, look, we did a rollover, I thought I did everything right, and now I'm getting hit with this massive tax bill because they think I cashed out the account. So if you are going to do something like that, just be very vigilant and make sure it's received and processed through on the IRS end as well. And this is where CPAs might submit the paperwork and not follow up on it. Just make sure your CPA is following up on it, making sure that everything is processed. Everything we do with the IRS, and this goes for state taxes as well, we have to confirm it because we can't trust them as far as we can throw them. You send them paperwork, half of it goes into the trash can. It's just nuts how easily they lose stuff. And it can have a huge impact on your finances.
Jaime - 00:13:03:
Yeah, I mean, we encourage folks to send things by certified mail to them and make sure they can track it. And, you know, paying by check, you know. For taxes is still one of those things that paying by check is a good thing, right? Because then you have the record.
Hubert - 00:13:17:
You have the canceled check, but the other way is, again, through irs.gov, you can pay and get an immediate receipt. So you can pay by check, you can pay through irs.gov, or if you go into a local IRS office, you get an immediate receipt as well. And you can get tax returns stamped received, which is your proof certain that it was delivered to them.
Jaime - 00:13:38:
So one thing I do want to talk about a little bit is capital gains and investment accounts. So if businesses are dividing an investment account, what tips would you have for folks to make sure that they are not going to get hit with any, you know, I guess we'll call them lopsided tax consequences, if you will?
Hubert - 00:14:00:
So this is more of a CPA question. And. I mean, the main thing would depend on their tax rate, the individuals, and what the expected gain was and how that could bump them into a higher tax bracket. So again, this would be... Crunching those numbers and taking the hard look with the CPA to see how much is it going to cost each individual and then balancing it from those costs. So like you mentioned before, where you had to do splits of assets, well, with alimony, you had to go to a CPA to crunch those numbers. It might be well worth it, especially if you're dealing with large numbers, to talk to a CPA, look at the tax implications and how it will affect each individual before you sign with the ROI.
Jaime - 00:14:44:
Yeah, definitely. And I think something else that can help mitigate, you know, just the differences between the two parties is if... Whatever assets are being held in whatever the investment or brokerage account is are divided pro rata so that each person is getting half of each particular investment. That way, one of the people is not getting hit with more tax consequences than the other, right? Like they will be what they are, but at least they're each getting equal amounts of those things.
Hubert - 00:15:13:
Yeah, that can work as well.
Jaime - 00:15:15:
So switching gears for a second and talking about, I guess, tax issues related to children. So for divorced parents. How do they get to decide who claims the kids' dependence?
Hubert - 00:15:28:
It's really between them, and if there's any kind of agreement, most judges will sign off on it. The rule of thumb from the IRS is whoever provides 50% or more of their care. If it's joint custody, though, the IRS does not like to get involved in those fights. If you are the primary provider for your child and someone claims a child that they shouldn't. You can go in and provide that proof with a tax return. The IRS will correct it, but it'll take them a year or two to do it. It takes them forever, at least a year to do it. So if someone's being... Aggressive or claiming children that they really shouldn't. It can be well worth it to just go to court and say, fine, you want to clean the children? Pay me more in child support. Let's make that adjustment. And it's better than trying to get corrected with the IRS every single year. Because the IRS doesn't know what happens year to year. And someone just might have been hungry for money. I'm actually divorced myself and my ex-wife did that this year. She decided to switch children, the children that she chose. And so I filed my return. It got kicked back to me. I had to figure out what happened. She said, oh, I just claimed the other child. I'm like, thanks for letting me know. Right. And I got my return through. It just took longer because of it. But if you are running to those issues, it's much easier to just go to court and say, look. Let them claim the child and just give me more in support. That's an easier way to balance things through rather than let someone play with the numbers every year and claim children that they shouldn't be claiming. It's a headache. And honestly, fighting through the IRS doesn't want to be caught in the middle. That's general rule of thumb. Go after both parties for any taxes owed, or they don't want to get in the middle of a custody dispute. It's easier to figure out in family law court.
Jaime - 00:17:29:
Yeah, whenever we are working out the terms of a separation agreement, we try to build in provisions that say who will be claiming what child and then what happens when a child is no longer eligible to be claimed as a dependent. You know, are they going to alternate the remaining child or how's that going to work? So we try to build in very specific rules so that folks don't find themselves in the position of, you know, both spouses claiming the same child the same year. But, you know, it happens. It happens a lot, actually.
Hubert - 00:18:00:
And going back and forth as far as claiming children, while it sounds good, can be confusing. If someone has a tax issue with the IRS, so if there's tax debt that needs to be addressed, it can really make a big difference who's claiming the child that year. So it- Especially for adult children and dependents. It might not make that big of a difference if someone's in college on your tax return, but it can still have a huge impact on what programs you qualify in resolving tax debt. So whether or not you can do an offer in compromise or a hardship status, or whether or not you're just paying the IRS.
Jaime - 00:18:35:
And why is that? Is it just a different program depending upon whether or not you have an eligible dependent or how does that work?
Hubert - 00:18:43:
So it's very different than on your tax return. Again, with the Trump tax cuts, you don't get as big of a deduction per dependent. But the individual deductions, I think it's down to 500 per dependent. But the standard deductions was doubled. So that was the trade-off. Currently It's still that way, but when you're looking at the collections side of things, it's very different than what goes on your tax return. And you get increased allowable expenses for food, for clothing, for rental expenses, for medical expenses, a host of expenses based on the number of people on your tax return. So it doesn't pay so much for refund purposes to claim a lot of dependents, but it still matters on the collection side because they have a very different analysis. And that's the world we play in.
Jaime - 00:19:34:
Yeah, I gotcha. That makes sense. So what about other benefits like the child tax credit? Who gets to claim those typically?
Hubert - 00:19:44:
Again, it's whoever claims them on their return or is... Like you mentioned, you know, you'll. In the settlement agreement, you'll determine who's going to claim the children. And whoever's claiming them and the child support calculations, you should get a compensation if the other person is claiming them to balance things out. That's typically what I've seen through most states, but I don't believe all states do that.
Jaime - 00:20:08:
So I know we touched on this briefly a little bit earlier, and I'm switching gears on you again. What happens to a retirement account like an IRA or a 401k when it's split in a divorce? Is the division a taxable event for either person?
Hubert - 00:20:25:
As long as it, like I said earlier, as long as it goes over to a qualified retirement plan and you do the rollover. No. But that's where you have to make sure the CPA not only submits the right paperwork within the right amount of time. But that it actually gets processed by the IRS as well.
Jaime - 00:20:44:
I was going to say, we have had folks come in and they're like, well, I'm going to take $50,000 out of my 401k and I'm going to give that to my spouse. And we're like, no, no, we're not going to do it that way. We're going to have a qualified domestic relations order and then you're not going to have that tax hit. But some folks have just not heard of that and their natural instinct is, well, I'm going to have to give him or her half of my 401k. I may as well just go ahead and take that withdrawal. And we're like, no, no, let's wait. Slow down.
Hubert - 00:21:12:
Yeah, absolutely. You want to do that right. And there's not a lot of forgiveness on that. And if you have cash out set as a retirement account. You might have to dip into that again, which again, you get hit with another penalty just to pay the taxes on the first withdrawal. It's a very nasty cycle.
Jaime - 00:21:28:
So in your experience, are there common tax mistakes that people make during the divorce process?
Hubert - 00:21:35:
Well, claiming jointly, making sure that they... Well, and here's the big thing. Another whole aspect of this is when there's a business. Because there can be all kinds of business liabilities. That your spouse or partner might not even be aware of. And I've seen an audit happen years after the divorce where the IRS came back and said, well, you didn't, this wasn't done correctly. And here's a whole new tax, but it hits both parties, even though they're currently divorced, but they were married at the time. So if you suspect anything funny going on with the business, if you can't see all the payroll filings, the corporate filings and make sure everything's done right. This is where I highly recommend filing separate. And one of the big concerns here is if you are working with your spouse in the business. Even as a secretary, if you sign checks, if you're the one that actually hits the button for payroll, etc., you can be stuck. Not only personally with payroll taxes, but also sales taxes. And you can be on the hook to pay those debts, which can be very high. And the IRS is very aggressive. And the states are even more so when it comes to sales taxes. So you want to make sure that you're not part of any business or you extricate yourself officially from the business. One of the things I'm seeing and we're helping a lot of people with is SBA loan defaults. So if your name is on a company and there's any kind of personal guarantee. If it's under $200,000, you can step away from it. But over that, you need to make sure you get your name removed off of the loan before you step away. Because otherwise, you can be held responsible if they default on that loan. And I talked to someone this morning that's in that very situation. The owner defaulted. His name was on as a guarantor. And he's liable for about $200,000 in debt. And he asked me, is there any way out of it? I'm like, no. He signed on as a guarantor, and it's over $200,000, so he's on the hook for it.
Jaime - 00:23:45:
Yeah, and it can get so tricky too with these small business loans when folks have used the marital home as collateral for the loan. And one person is getting the business, which the loan is attached to, but the other spouse is supposed to get the house. And it's like, hey, guess what, guys? The house is still collateral for this loan. So unless that loan is refinanced and the house is removed, it's still there.
Hubert - 00:24:10:
And you need to get the lien from the SBA loan removed as well. So you need to get them to sign off of it. Now, most cases where homes or property were used as collateral are pre-COVID loans. So post-COVID, most of the EIDL loans didn't require collateral. But again, if it's over $200,000 or if you signed up for a loan personally and you didn't use an EIN for a business, you can still be held personally responsible for anybody that was connected to that loan. So just something to look into, investigate and make sure that you're protected as you step away.
Jaime - 00:24:47:
Yeah, that's all great advice. I mean, you know, folks are getting separated and divorced for a reason. And most likely there is some lack of trust between the folks because of something. And unless the spouses are both W-2 employees who have both withheld their taxes appropriately, you know, it may not be worth the tax savings to file married filing joint, given all of these potential risks and liabilities that you've mentioned.
Hubert - 00:25:19:
And if you're on top of your taxes, you can pull the transcripts. If you're fully informed, maybe it is the best way to file if you know there isn't anything going on. But again, if you... If they have a CPA or tax preparer that they've been using, especially if they have their own business, get a second opinion. Have another CPA look at this situation. And if they don't cooperate, they don't give you the information that's needed. There's your red flag. There's your warning sign. And it needs to be brought up and addressed in the divorce.
Jaime - 00:25:51:
So. When in the process do you think a spouse should talk to a tax professional? Do you think that they can wait or should they do it right away?
Hubert - 00:26:05:
Well, they can wait, but I don't recommend it. So the best time to get advice is as early in the process as possible. The main reason why is we can give you great advice. Don't file jointly if there's going to be an issue. If they're not giving you information, we can recommend you to excellent CPAs. We have a network where we refer to CPAs across the country. So I refer people to CPAs in New Hampshire, California, Florida, Texas, Illinois, all over the place. And it's... It's really helpful to have someone in your corner that you can trust. Now, as far as giving advice on what to do, what not to do. We do a free consultation. We don't step into it. We don't charge a dime until we actually step into a case. So I had someone speak to me. Just the other day, I hadn't filed for 13 years.
Jaime - 00:26:57:
Wow.
Hubert - 00:26:58:
One of the first things I told them is don't file 13 years of returns because the IRS can only go back six years. Right now, as of January 1st, they can only ask for 2019 through 2024, and 2024 doesn't even do yet. So technically, they can't ask for 2024 yet. But if you file anything older than 2019, you're just giving the IRS free money or piling more debt on yourself, the only reason to file an older return is when you're dealing with the states, they can demand that, or if the IRS already filed for you on an older return. So limited circumstances where you need to file more than six years. But the IRS. Will tell people all the time, 10 years. But if you talk to the collections department, the department we deal with, it's six years because they actually know the rules. So the IRS will give bad information all the time. And legally, there's case law on this. They can't be held accountable for their bad information because you're supposed to get your own information and have your own legal representative tell you what it really is, the law.
Jaime - 00:28:06:
That's convenient.
Hubert - 00:28:09:
It really is nuts that the government can give bad information and it doesn't matter. If you follow their bad information, tough luck. That's just the way it is. So I recommend getting information early in the process, and you can avoid a lot of pitfalls. You can, possibly not even need a tax attorney.
Jaime - 00:28:34:
If you could only give one piece of advice to someone going through a divorce, what would it be?
Hubert - 00:28:39:
Get informed.
Jaime - 00:28:41:
Yeah, knowledge is power in these situations.
Hubert - 00:28:44:
Oh, yeah. If you're informed, you can either negotiate something out of it or you'll understand what the impacts are and can be prepared for it. But getting informed, the earlier the better is always the best. I mean, we deal with all kinds of cases where people have already withdrawn. Money from accounts. You know, I just had one today where a son had his own issues and he put a house in his mom's name. And she had a tax lien attached. And then they try to move it out of her name. It's a mess. And you see people moving property around all the time, especially going into a divorce. If it's not done right, you can create much bigger headaches for, not only the people you're giving the property to, but you can make them liable or now this house has a lien attached and other people can also have their bank accounts hit, wages hit if they're too intertwined with someone or they owe jointly with someone that owes taxes. So there's a lot to be aware of.
Jaime - 00:29:53:
Yeah, it sounds like there is a high likelihood that you could make a bad situation exponentially worse if you do not get informed early in the process.
Hubert - 00:30:05:
Absolutely.
Jaime - 00:30:07:
Well, Hubert, thank you so much for joining us.
Hubert - 00:30:11:
My pleasure. It's been a lot of fun. And again, just. There's just so much stress with divorce. And I think taxes comes right behind it as far as stress levels. But there's no reason to be stressed out. A lot of people are concerned they're going to go to jail. They're going to get arrested. If you deal with it right. You don't have to worry about that. And we can take a lot of that stress off of people's shoulders. You have to really try to end up in criminal trouble with the IRS. It happens when someone does everything wrong. But we see it in the news. I've never had it happen to one of my clients.
Jaime - 00:30:46:
Well, if one of our listeners wants to reach out to you for help with their tax situation, what is the best way for them to get in contact with you?
Hubert - 00:30:56:
The best way is just to call us at 520-485-7371. I do recommend looking us up online. Any professional you're looking to hire, vet them online. Check out their reviews. Look at what they publish. Does it make sense? And again, it never hurts to get a second opinion, just like a doctor. If a doctor tells you something that's off, doesn't sound right, get a second opinion. Same with the CPA. Same with the tax practitioner. I'm not afraid at all to tell people to get a second opinion and make sure you feel comfortable and that you're getting informed when you talk to professionals.
Jaime - 00:31:33:
Thank you again for joining us. This has been super informative.
Hubert - 00:31:37:
Thank you for having me.
Jaime - 00:31:43:
Thank you for listening. If you like this episode, be sure to follow the show wherever you get your podcasts so you don't miss the next one. While the information presented is intended to provide you with general information to navigate divorce without destruction, this podcast is not legal advice. This information is specific to the law in North Carolina. If you have any questions before taking action, consult an attorney who is licensed in your state. If you are in need of assistance in North Carolina, you can contact us at Gailor Hunt by visiting divorceistough.com. I'm Jaime Davis, and I'll talk with you next time on A Year and a Day.