There are two certainties in life: Death and Taxes. We've already written about how divorce and estate planning are interrelated, but what about divorce and taxes?

In all cases a divorce will affect some part of your tax return. In most cases there will be numerous changes in your income tax liability after your divorce and you should give consideration to what changes will take place because this could be a factor in determining the best divorce settlement for you. In some cases these changes may be complicated enough that your attorney should involve an accountant or certified financial planner to help analyze the different options. Our next five blog posts will explore the various issues raised by the interrelation of divorce and taxes so that you are at least aware of the issues to be on the lookout for.

Issue #1. MARITAL STATUS: The most obvious way that a divorce will affect your taxes is by changing your marital status. This is a change to your federal income tax return that will happen after every divorce case.

In Massachusetts, after the expiration of the Divorce Nisi waiting period (90 days from the issuance of the Judgment of Divorce Nisi) when the Judgment of Divorce becomes final you are officially divorced and you are no longer qualified to file a tax return as "married, filing jointly" or "married, filing separately". The key date for determining your tax year marital status is December 31. If your divorce nisi period crosses December 31, then you are technically still married in that tax year and must still file under a married status.

Obviously, marital status has a significant affect on your income tax liability and if you are scheduling an uncontested divorce hearing in the Fall you might want to consider whether it makes sense to schedule it early enough to change your status by December 31, or wait.

Click here to read Divorce & Taxes - Issue #2. Child Support v. Alimony.

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days.

This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened.

In addition to offering a grace period to change your mind, the Nisi period has three other legal effects:

1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, because you would then technically be married to two people.

2. If the Nisi period crosses December 31, then you are considered married for that tax year which means you must file under "joint" or "married, filing separately" and cannot file as "single".

3. Under some health insurance plans you may not be able to stay on your ex's health insurance (as explained further in our previous post, Will I be able to keep my health insurance after the divorce?), but at least during the Nisi period you can stay on the health insurance.

In Massachusetts there are statutory waiting periods that control when the divorce becomes final (also called Absolute). Until the divorce is officially final you cannot remarry anywhere without committing bigamy (i.e. being married to two people).

In Massachusetts the length of this waiting period depends on the type of divorce case.

In a Joint Petition for Divorce under Section 1A of M.G.L. c. 208, if both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce. The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. If the parties are unable to settle their divorce case, then a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days. Similarly after 6 months have passed since the date of service, a Complaint for Divorce may be settled and a Separation Agreement presented to the Court. If the Court approves the Separation Agreement then the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

This means that if you file a Complaint for Divorce, whether or not there is a trial or a settlement, you are not legally and officially divorced until 90 days after the issuance of the Judgment of Divorce Nisi.

In addition, once the divorce is final there is typically a three-day waiting period for obtaining a marriage license after the application is submitted to your town or city hall. However, it is possible to apply to the Probate Court for a waiver of this three-day period for good cause.

CNN recently reported on the developing trend of divorce ceremonies in Japan. These ceremonies in many respects parallel weddings, with friends and relatives present and a reception afterward. However, the substance is often cathartic instead of celabratory. For example, during the ceremony both the husband and the wife together smash a wedding ring with a mallet, they eat at separate tables during the reception, and the musician at the reception sings about breaking up.



While the existence of these ceremonies seems diametrically opposed to the American way of handling a divorce (parodied here by Indigo Productions), the thinking is to provide a symbolic ending so that both the husband and the wife can move on to the next stage of their lives.

In Massachusetts, the closest thing to a divorce ceremony that we have is the uncontested divorce hearing. Very different from a trial, the uncontested divorce hearing occurs when both parties agree to the divorce and have reached an agreement on all outstanding issues. After a short approximately 10-15 minute hearing in which the Judge reviews the agreement and a basic case is entered into the record, the Judge declares that the parties have demonstrated sufficient facts to obtain a divorce and that a Judgment of Divorce Nisi will be granted thirty days after the hearing. Ninety days after that, an absolute Judgment of Divorce is entered and the couple is officially divorced. Basically, it takes four months of waiting from the last date that you go to court before you are technically divorced. How unceremonial.