Category:Divorce

From TaxAlmanac

Divorce/Legal Separation, vs separation agreements pending divorce

This page lists discussions noted as being helpful with regard to certain tax aspects of divorce. In addition, here are some good posts excerpted from discussions that relate to the meaning of "legal separation:"

Riley2, 2/6/06:

"A separation agreement is not the same as a legal separation. A separation agreement is an agreement to live apart while maintaining the marital status and marital rights and obligations of the spouses. A legal separation is an order signed by a judge to terminate the marital rights and obligations of the spouses, while restricting the rights of the parties to remarry."

Riley2, 4/14/06:

“Legal separations are very rare. A legal separation is an order signed by a family law judge terminating the marital rights and obligations of both spouses (including property division). The main difference between a legal separation and an order for separate maintenance is that a legal separation ends the marriage in the same manner as a divorce; however, the spouses are not free to remarry. I doubt very seriously that your client has a legal separation order signed by a judge.”

Riley2, 12/15/06:

"Under tax law, any individual who receives a decree of legal separation from a California Family Court, must file as a single individual. In California, legal separations are rare and differ from a dissolution of the marriage insofar as a legally separated individual is treated as being unmarried, but inelgible for remarriage."

Lizzit, 2/9/08:

"In some states, a legal separation is the same as a divorce - he's single. In other states, a legal separation is the same as being married - he's married. Most states go with Married."

R2, 4/10/10:

"In California, an individual who has a separation agreement without a judgment of dissolution or legal separation is considered to be married for tax purposes. Conversely, an individual with a judicial decree or order of legal separation is considered to be unmarried for tax purposes.

In California, a legal separation order must be signed by a judge, and it has no expiration date."

Mscash, 4/5/10:

"In California you can file for separate maintenance, dissolution or annulment. Separate maintenance is the same as a dissolution except you can't remarry. You would only do this if you had religious objections to divorce. The other party could convert it to a dissolution on request."

And this discussion goes into great detail, and has cites, concerning several of the states that specifically prohibit legal separation, and offer only divorce: Discussion:True_Legal_Separation_MFJ_to_MFS'_Quagmire.

Distinction between legal separation and termination of community property

Tkelly911, 8/29/09:

"There is also an important distinction between legal separation and termination of community property. In California, to be legally separated for purposes of filing status requires an order of the court, exactly as Riley describes. In practicality, this is almost never used because it serves little purpose. The termination of the community, which is of course a very important factor for both tax and non-tax purposes, is based on an entirely separate standard here (essentially separation with no intent to re-unite). When this occurs is a question of fact not dependent on a decree. And that standard varies significantly between community property states as well. The result is that in states like California, an actual dissolution is the only status which changes the filing status of anyone where such status is dependent on state law (as opposed, for example to HOH which is an exception rooted in federal law). Witness the huge volume of court cases which find a federal Tax Court judge applying an interpretation of state law in order to resolve a federal tax issue."

Discussions/Articles categorized in the Divorce Category