Uncle Sam holding a stack of 1040 tax forms.

When are two $10,000 assets not worth the same as each other? When the spouses are not considering the “divorce tax” on the assets awarded to them. We have a whole article in the Colorado Family Law Guide on the effects of this “divorce tax” on your property settlement, but here is a quick rundown of the issue.

What is a “Divorce Tax?”

The term “divorce tax” is used somewhat liberally, hence it is in quotes, because upon dissolution of marriage, the transfer of assets between spouses is not itself a taxable event, so no taxes are owing. But that also means that none of the assets have a step-up in their tax basis when the decree enters.

Whichever spouse receives a particular asset is going to end up being responsible for paying all taxes owing on that asset – either accumulated taxes for the year on that year’s tax return, or by paying income or capital gains upon selling the asset in the future.

It’s common in divorce cases to have a spreadsheet listing the marital estate (i.e. all marital assets and debts). Graham.Law and other family law firms have versions of a spreadsheet they like to use, CPAs use them when valuing the marital estate, and our 4th Judicial District earlier this year promulgated their own JDF 330 Joint Marital Asset Spreadsheet.

But the spreadsheet is simply the gross value of a particular asset, minus any debt/mortgage on that asset – on its own, it does not take into consideration the tax consequences. For that, you need either agreement of the parties, or a CPA to tax normalize the assets.

Impact of Divorce Tax on Types of Assets

To illustrate how tax on divorce settlement questions can affect the value of the marital estate, consider how taxes can impact three different $500K assets on a spreadsheet. And then think about how much in attorney’s fees a spouse may spend over a $10,000 asset, while at the same time not thinking about the $100,000 “divorce tax” effect on that 401(k) he was awarded.

$100,000 Loss on Pre-Tax Retirement Account

A pre-tax 401(k), traditional IRA, etc, is the least valuable of all assets. Even though the funds in the account grow tax-deferred, the “deferred” means that once a spouse actually retires and begins to live off the retirement, she will owe taxes on them, payable as normal income. Assuming a fairly modest combined 20% state and federal tax rate after retirement, that half million 401(k) ends up being worth just $400,000 after taxes.

No Tax Effect on Cash

By contrast, a $500K pile of cash sitting in a bank account has already been taxed (minus potentially the taxes owing on whatever measly 0.25% interest rate the bank pays). So what you see is what you get – the value of cash is essentially unaffected by taxes. And to some degree, the same may be true of real estate – if one spouse is awarded a $500K residence with only $100K of appreciation since purchase, that $100K is below the $250K threshold for when a single taxpayer owes taxes when selling real estate.

Tax-Advantaged Accounts

The most valuable of the assets one can receive are accounts containing post-tax money, but which grow tax-free. This includes Roth IRAs, Roth 401(k)s, and even Health Savings Accounts (an HSA is actually pre-tax money, but as long as used for approved health purposes, all funds in it are tax-free).

How To Factor Divorce Tax Into Property Settlement

As indicated, on its own a spreadsheet will not consider tax consequences of a divorce settlement. Nor can an attorney or spouse simply choose an arbitrary number at trial (say 20%), and ask the court to just assume a certain tax deduction for assets. So that leaves three solutions to ensure that the divorce tax is spread fairly between the spouses.

Divide Each Class of Asset Equally

Tax form next to pen on top of stack of hundred dollar bills.

Most marital spreadsheets will have different types of assets in different sections – cash/bank accounts, investments, real estate, retirement, and so on. And, of course, within retirement each account could have radically different tax consequences, depending upon whether it is a pre-tax 401(k) or a post-tax Roth IRA.

So the simplest way to account for taxes is to ensure that each spouse receives a roughly comparable share of each type of asset, especially with retirement accounts. So instead of one spouse receiving the $500K Roth IRA while the other spouse receives the $500K 401(k), each spouse receives half of each of the accounts.

And with more than two retirement accounts, to avoid the laborious task of dividing each and every account down the middle (certain retirement accounts, such as 401(k)s, require a separate Qualified Domestic Relations Order to divide), they are “netted out” against each other, so each spouse receives entire accounts to the extent possible, and then one account is divided disproportionately as the “equalizer.”

But trying to ensure an exactly even allocation of the “divorce tax” would be a laborious exercise.

CPA to Tax Normalize Assets

The next method is to simply retain a CPA to tax-normalize assets. When there are multiple assets of multiple types (e.g. pre-tax retirement accounts as well as regular investments with accumulated capital gains), this may be the only practicable alternative to dividing each individual asset down the middle.

Agree to a Reduction for Taxes

Finally, the parties could simply agree to a reduction to factor in taxes. This only works when both spouses have experienced counsel who are willing to cooperate, and have seen enough CPA tax normalization calculations that they are willing to do this.

From past experience, most tax normalization calculations end up in the 15-20% range, so the spouses could simply agree to a 17% divorce tax on pre-tax assets.

This has the advantage that it creates more flexibility – instead of trying to divide every type of asset equally, you can now give one spouse the residence, and the other spouse the tax-normalized IRA or 401(k) to offset the house value.

But there are some limitations to this method:

  • Family law attorneys are not tax experts – so we would be coming up with an abstract estimate, not a precise tax number tailored for a specific client.
  • It only works for pre-tax retirement assets – I don’t think anyone without tax experience would pretend to be able to estimate the accumulated capital gains on an investment.
  • It requires both spouses to have experienced counsel and to be cooperative. As with any agreement, it takes two to tango, so if one spouse declines to cooperate, you are back to either dividing everything down the middle, or using a CPA.

Other Divorce Tax Issues

This post focuses on the impact of a divorce tax on the property settlement. However, that is not the only tax issue which spouses need to be aware of – there are tax issues connected to child support and alimony, as well as overall tax implications of marriage vs divorce vs legal separation vs annulment to consider.

FAQ – Divorce Tax Considerations

Is a divorce settlement tax deductible?

No, a divorce settlement is not tax deductible to either spouse. Divorce is not itself a taxable event, and dividing property upon dissolution of marriage is not treated as a taxable realization, but simply giving a spouse assets which he/she already owns, even if they are in the other spouse’s name.

How much tax do you pay on a divorce settlement?

There is no literal “divorce tax”, whereby a spouse owes taxes on the assets awarded to him/her. However, each spouse receives the assets subject to any taxes which may be owing in the future, including capital gains (15-20% for long-term gains) or income tax, payable at that spouse’s normal tax rate.

Do you pay capital gains tax on divorce settlements?

Yes. A spouse who is awarded assets in a divorce will ultimately owe any capital gains tax owing on that asset (the long-term capital gains tax is 15-20%). No taxes are owing because of the divorce, but taxes are owing on any accumulated capital gains, or when a former marital residence is sold.

How to avoid capital gains tax during divorce?

While no capital gains taxes are owing upon divorce, a spouse who is awarded an asset will ultimately be responsible for the taxes owing on that asset. The only way to avoid a tax liability is to only be awarded assets with no capital gains. Otherwise, you can retain a CPA to factor in the capital gains taxes owing for purposes of the divorce settlement.

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Graham.Law Team

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