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Alimony and Tax Implications

Wednesday, December 23rd, 2015

In Georgia, alimony can be awarded in accordance with the needs of one party and the ability of the other party to pay. O.C.G.A. § 19-6-1(c). In determining the amount of alimony, if any, to be awarded, the Judge must consider the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of both parties; the financial resources of each party; the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment (where applicable); the contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party; the condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and any other relevant factors. O.C.G.A. § 19-6-5(a)(1-8). In addition to these factors, the parties themselves, along with their attorneys must consider the tax implications of any alimony award.

In general, alimony is treated as income to the recipient and must accordingly be included on the recipient’s tax returns. Conversely, alimony is treated as an income deduction to the payor. This can make a huge difference on both sides. An example recently played out in the divorce of former Red Hot Chili Peppers guitarist John Frusciante. Ex-Guitarist Has to Give It Away, Give It Away…But Not What Estranged Wife Wanted, by TMZ Staff,, October 19, 2015. In that case, Frusciante had been paying his estranged wife $20K/month in temporary alimony. His wife was receiving this amount tax free, which means that Frusciante was paying her $20K and also covering around $20K in taxes on that amount. Nonetheless, Nicole didn’t think that amount was enough given his substantial assets, so she asked for $75K/month tax free, which would have put Frusciante on the hook for nearly $150K including the taxes. Luckily for him, the Judge ordered him to pay $53K/month, but ordered her to pay the taxes on that amount. Though the original alimony obligation increased, it is not as substantial as Nicole wanted, and a big reason is the taxes.

As this case shows, taxes can cause a huge swing in a divorce case. In any settlement agreement, make sure payment of taxes is plainly spelled out so both parties have a clear picture of their financial obligations.

Can A Girlfriend/Boyfriend Be Claimed As A Tax Break?

Wednesday, June 11th, 2014

An article on entitled “My girlfriend is a tax break” recently caught my eye.  “My girlfriend is a tax break,” by Blake Ellis,, April 10, 2014. Nearly everyone is aware that children qualify as dependents on a parent’s tax return, qualifying those parents for a tax break.  However, girlfriends and boyfriends can also qualify as dependents, so long as certain requirements are met.

First, the significant other must live with you.  Expect to provide proof of the cohabitation such as both names on a lease, or mail addressed to that person at the joint address.  Second, he/she must earn less than $3,900 per year.  This is an extremely low annual income.  The person basically has to be unemployed or working very few hours. Third, you must pay for more than half of their expenses.  Again, expect to provide proof that you are paying all or nearly all of the household and other expenses including mortgage/rent, utilities, groceries, etc.  Fourth, someone else must not claim them as a dependent.  If the above criteria are met, claiming your significant other as a dependent will give you a tax exemption of up to $3,900.  It should be noted that this tax exemption is not meant for the extremely rich.  If you earn more than $250,000 per year, the exemption begins to phase out.

The tax experts quoted in the article point out that use of this exemption is very rare because it is extremely difficult to qualify for.  One expert stated that she prepares around 300 tax returns per year and that only one or two qualify to claim a significant other as a dependent. It is mainly used by couples in which one party stays home with the kids either by choice or due to the inability to find a job.

NOTE: The writers of this blog are NOT tax experts and are not qualified to give tax advice. If you think you may qualify for this exemption, please contact your tax advisor.

Information You Need to Prepare for Your Georgia Divorce

Tuesday, November 19th, 2013

Knowledge is power. This is a very familiar saying that is equally as true in the realm of divorce as it is in any other situation. If you have decided that you are ready to peruse your divorce in Georgia or the Atlanta Metro area, there are two things you should do first: 1) seek the advice of an Atlanta divorce attorney and 2) gather as much information that may be relevant to your divorce as you possibly can.

Theoretically, divorce is the termination of a marital relationship. Practically however, divorce is the separation of two lives, not only emotionally, but physically and financially as well. Generally, the two main areas of contention in divorce matters are property division and child custody. Keeping this in mind, it is essential to ensure that you arm yourself with information regarding your family’s finances, property and assets. Additionally, you should also gather information and records concerning your children’s health and education.

Below is a short list of the types of information you will need to be adequately prepared for your divorce.

  • Personal financial information, like bank accounts, credit and accounts, retirement accounts, tax returns and pay statements, for you and your spouse.
  • Mortgage or leasing information for your marital residence or any other residence owned or leased by you and your spouse.
  • A list of the assets owned or debts owed by you and your spouse, both individually and jointly.
  • Personal identification, like passports, driver’s licenses, and social security cards.
  • Child related information, like school and medical records, along with information concerning child care related expenses.

Copies of insurance policies, wills or trust, and any evidence proving domestic abuse, adultery, or any other fault or wrongdoing of your spouse that may be relevant to your divorce.

2013 Year-End Tax Planning Whitepaper

Friday, November 8th, 2013

We wanted to share with everyone a great piece on year-end tax planning from National Wealth Planning Strategies Group, U.S. Trust.

Please read and share here: 2013 Year-End Tax Planning Whitepaper




Five Tax Related Traps to Avoid During Your Georgia Divorce

Wednesday, March 13th, 2013

Once again, we have entered the season with which many accountants have a love-hate relationship: Tax Time. Although it may not be apparent on first blush, there are several tax consequences associated with divorce. These tax consequences can only be appropriately addressed if you are aware of them. Without adequate knowledge, it is very possible to fall victim to one of the five tax related traps outlined below. This is why it is extremely important to consult with an attorney who specializes in family law, specifically divorce, to help you navigate through the divorce process in Georgia.

1. Failing to have an institution-to-institution transfer of retirement funds and therefore having to pay taxes on those funds. Do you know how to correctly transfer qualified retirement funds upon divorce to avoid taxes? Speak with your divorce attorney regarding Qualified Domestic Relations Orders to see if one may be necessary to divide and transfer retirement funds upon your divorce.

2. Not knowing when you can withdraw retirement funds from a retirement account without paying a 10% penalty if you are younger than age 59 1/2. Attorney fees are not the only costs of divorce. Financial missteps during divorce can easily overshadow the known costs.

3. Failing to realize that your alimony will be taxed. If you are seeking alimony in your divorce matter, it is absolutely essential that you know that alimony is deductible to the payor and treated as taxable income to the recipient spouse.

4. Failing to have tax credits and refunds or capital gains or losses carried forward as divisible assets listed in the Marital Dissolution Agreement or Final Decree or Divorce. Do not forget about those assets. If you do, you may unintentionally give your ex-spouse a parting gift. Paying attention to details is vital during divorce.

5. Not deducting your attorney fees that are attributable to receiving alimony or retirement funds, if you qualify. Do you know if you qualify? This information can potentially save you hundreds or thousands of dollars.

If you are currently contemplating or going through a divorce here in Georgia, and you want to ensure that you do not fall victim to any of the traps outlined above, speak with one of our experienced divorce attorneys at Meriwether & Tharp. The members of our Atlanta Divorce Team will be able to offer you sound advice to guide you through every aspect of the divorce process.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

Benefits of Mediation

Monday, January 12th, 2009

Mediation is one option for resolving a family law case. In mediation, the parties and their attorneys meet with a neutral, third party mediator to help them resolve the outstanding issues in their case. Our firm has been very successful in resolving cases through mediation and there are many benefits to the process.

At mediation, parties can get things through negotiation that they would not be able to get from a Judge at trial. A good example of this is the dependency exemption on tax returns. Under the IRS regulations, the custodial parent is entitled to the dependency exemption. Thus, a Judge cannot award this benefit to a non-custodial parent. Many times, however, a non-custodial parent will benefit more from the dependency exemption than the custodial parent and may even be able to have more expendable money to pay in child support if given the exemption. In that case, the custodial parent can use the dependency exemption as a bargaining tool and give it to the non-custodial parent in exchange for something else during the mediation process.

Parties are usually happier with the results at mediation as compared to trial because they have some control over the outcome. When you go into a courtroom, your case is in the hands of a Judge who will listen to evidence and make a ruling on the issues. Many times, this results in both parties being unhappy to some extent. At mediation, you exchange offers with the opposing party and come up with unique solutions that a Judge may not consider.

Taxation of alimony and the recapture rule

Saturday, November 22nd, 2008

Although child support is not deductible by a payee, alimony is generally deductible by the payer and must be included as income to the payee. While many attorneys provide this advice to their clients, there is one often overlooked exception to this alimony rule that should be carefully examined during a divorce case. In particular, if alimony payments decrease or terminate during the first three calendar years, you may accidentally find yourself subject to the alimony recapture rule. If you are subject to this rule, you will have to include as income in the third year part of the alimony payments that you have previously deducted (and your former spouse can similarly deduct in the third year part of the alimony payments that were previously included as income). As pointed out by IRS publication 504:

“You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year.”

If you are considering paying/receiving alimony as part of a divorce and think you may fall within this exception, we strongly urge you to seek the advice of a tax professional you trust to provide you guidance in this complex area.

For more information we recommend you start by reading IRS Publication 504 and consult with a tax professional.

Deductibility of legal fees related to a divorce

Friday, November 14th, 2008

Although generally you cannot deduct legal fees you have incurred in obtaining a divorce, there are several exceptions that you should consider talking with your tax professional about in more detail. In particular, you may be able to deduct fees paid for tax advice (subject to the 2% of adjusted gross income limit) you received in connection with the divorce, such as from appraisers,accountants and attorneys if you itemize deductions on Schedule A (Form 1040).

Interestingly, because alimony is considered income, you may also be able to deduct fees incurred in helping to obtain an alimony award.

In addition, certain legal fees you pay specifically for obtaining property, such as the cost of preparing and filing a deed in your name, may enable you to increase the basis of the property you receive.

One thing is clear, if you plan to try and deduct fees related to tax advise obtained during a divorce or fees incurred in obtaining alimony, you must make sure that your charges are clearly broken down in such a manner that you can determine charges that are deductible and charges that are not deductible.

Divorce and Taxes

Saturday, December 1st, 2007

This blog entry regarding tax issues related to a divorce is intended to alert you to issues to think about and provide some basic information. Before you sign any tax return or take any action with respect to your federal or state income returns, please review your situation with your current tax advisor.

Change of Mailing Address
You may officially notify the I.R.S. that you have changed your mailing address from the address used on your last tax return by filing I.R.S.Form 8822.

Spousal support or alimony is taxable to the recipient and deductible from the income of the payor if all I.R.S. requirements are met. Lump sum alimony is not deductable. For more information see Divorced or Separated Individuals – IRS’s Form 504.

Child Support
Child support payments are not deductible from the income of the payor or taxable to the recipient. For more information see Divorced or Separated Individuals – IRS’s Form 504.

Dependency Exemption for Minor Children
Unless specifically addressed in your Decree, generally the custodial parent will be entitled to claim the dependency exemption for the minor children on his or her income tax return. The custodial parent may execute I.R.S. Form 8332, releasing the dependency exemption to the non-custodial parent. Release of Claim to Exemption
for Child of Divorced or Separated Parents – I.R.S. Form 8332.

Georgia divorce and tax liability

Tuesday, May 1st, 2007

The Supreme Court of Georgia recently reversed a decision of the trial court in a divorce case, which made certain directives regarding the parties’ tax liability. Symms v. Symms, S10F1783(2011). During the final hearing in that divorce case, there was testimony that “the parties had failed to report income from the [wife’s] photography business for the purpose of the assessment and payment of income tax.” Id. at 2. The trial court’s final judgment and decree of divorce included several provisions addressing tax issues, including, but not limited to, ordering the parties to amend four years of income tax returns (for which the court specified exact dollar amounts to be used for income) and ordering that the parties be equally responsible for any tax liability and/or penalties. Id. The husband appealed, arguing, “the superior court exceeded its authority in ordering the filing of amended tax returns reflecting the legal determination of joint and several liability and the factual determinations of income.” Id. at 3.

The Supreme Court of Georgia agreed, stating generally “our State Courts are not authorized to impose income tax liability.” Id., quoting Blanchard v. Blanchard, 261 Ga. 11, 15(1991). Specifically, the Court held that ordering the parties to be jointly and severally liable for any tax liability or penalties was “premature because of the Husband’s contested claim that he qualifies as an ‘innocent spouse’,” and that he is entitled to an IRS determination of his status as such. Id. at 3. In addition, the Court held that the dollar amounts that the trial court ordered be reported on the amendment of the previous tax returns were “either largely speculative…or blatant misrepresentations” with no accurate documentation backing them up. 4. Thus, the portion of the final judgment and decree of divorce related to the parties’ taxes could not stand.