Kelly Frawley and Emily Pollock, Contributor
March 23, 2021
Getting divorced in 2021 may be a bit different than in previous years, because, well, COVID. Slowdowns, shutdowns, layoffs, childcare challenges—many of us encountered aberrant financial and personal circumstances last year, and we face continued uncertainties in 2021. Businesses and families alike are striving to get back to normal or to adopt a new normal yet to be fully defined.
All of these matters will be considered during a divorce proceeding, and you need to be strategic about your approach, including when you file an action for divorce, taking into account your spouse’s and your current financial circumstances as well as those you anticipate in the coming months.
As you and your lawyer make the important decision about whether to file an action for divorce, or proceed with the divorce negotiations without filing, keep in mind that, unless a prenup exists to the contrary, money spouses earn during their marriage is considered marital property (also called joint or community property), subject to division, while money earned after a divorce action has been filed is commonly treated as property that will not be subject to division. The clock stops on marital asset accumulation when you commence the action for divorce (referred to as the filing, commencement, or cutoff date). It’s wise to take stock of your past financial standing, as well as what may be in the 2021 pipeline.
Advantages of Filing Early in the Year
While every situation is unique, one practical advantage that holds for most is that filing for divorce early in the year can make accounting easier, because year-end documentation from the immediately prior year —paystubs, W2s, 1099s, retirement account summaries, credit card statements, etc.—is readily available. There is a clean year-end break, as earnings for the new year will be classified as separate property for tax and distribution purposes.
Advantages of Waiting Until Later in the Year
If, due to the nation’s continuing economic uncertainty, you are unable to project your income or business revenues for 2021 with confidence, you may want to delay filing until you have a better sense of what’s to come. As we wait to see what the government will do in terms of stimulus, business support, unemployment benefits and the like, it may be difficult to anticipate your future financial status.
You may also want to hold off temporarily on filing if your income took a hit in 2020. Many states determine your income based on your most recently-filed tax return, which would be 2019, if you haven’t filed your 2020 tax returns yet. As the payor spouse, you could potentially find yourself on the hook for more support than you can afford, and as the payee spouse, you could end up with a support award that cannot realistically be enforced.
Questions to Ask Yourself as You Decide When to File
The following considerations may help you determine whether to file sooner or later.
Are you expecting a windfall in 2021? If you anticipate a big liquidation event from a business interest or a payout for a certain deal—e.g., a bonus payment that’s forward-looking rather than compensation for work completed in prior months—you may want to commence your divorce ASAP so that all or a portion of the payment may be considered separate property versus marital. If it’s a commission on work that’s underway but not completed, then the sooner you file, the more likely you may be to maintain a larger share of that reward for yourself.
Do either of you own a business? If you or your spouse owns a business, then another date, the valuation date for the business, may also become important to your divorce. Depending on your state laws, your valuation date may be the filing date or the trial date. Either way, if you own the business and expect the value to rise, it may make sense to file right away to secure a date before the value increases. Conversely, if you’ve had a boom in business lately that you expect to taper off in the coming months, it may make sense to delay filing until the value evens out.
Is filing a joint tax return important to you? Your marital status for income tax purposes is determined as of December 31 of the tax year. If you divorce before that date, you can’t file a joint return even if you were married for 364 days of that year. If you want to take advantage of tax benefits related to filing jointly, time your divorce so the judgment isn’t issued before the end of that tax year. Consider whether you want to do one more joint return and plan your filing date accordingly.
What timing would be best for your family? Finances aren’t everything. Consider where your family is emotionally and practically before you file for divorce. Some spouses look at this year as a time of transition all around, so why not make this one more change? Others believe that adding a major life change like divorce can be an additional stressor on family members.
If you’re ready to pursue a divorce, talk with your lawyer about the best timing given the economy and your financial and family circumstances—past, present and future.
© 2020 Forbes Media LLC. All Rights Reserved
This Forbes article was legally licensed through AdvisorStream.