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Avoid Tax Landmines While Transferring Assets Post-Divorce

Your divorce is final, you can finally breathe and start to rebuild.  The next item on your to-do list is complying with your agreements and facilitating the division of property.  Transferring property can be tricky and sometimes trigger unintended tax consequences.  Typically this happens to individuals who are not financially savvy, assume everything was addressed in their separation agreements including any form of taxes, do not seek assistance from a financial professional and are in a rush to get all the loose ends tied up to get on with the rest of their lives. 

 

The following information will help you steer clear of potential tax landmines during the transfer process:

Tax-Free Transfers

Property transfers pursuant to a divorce as outlined in a divorce agreement are tax-free under section 1041 of the tax code.  Before you make the assumption that this is going to be easy, continue reading.  This means the asset transfers tax-free, such as an investment, cars, furniture, retirement accounts, etc.  For example, if Anna is awarded $100,000 (or 65 shares) of Joe’s Amazon stock, in order for the transfer to be tax-free Anna will need to open an account and have Joe instruct the institution to transfer the 65 shares of Amazon stock to Anna.  Transferring the Amazon stock, the asset, to Anna is tax-free.

 

Hidden Landmine

If Anna tells Joe to sell the Amazon stock and write her a check for the proceeds, will this be a tax-free transfer?  Technically, the cash, the asset transferring, will transfer tax-free.  However, the hidden taxable event occurs when Joe sells the stock.  Joe will receive tax documents stating how much of the Amazon stock sale is taxable which will be required to be reported as a gain (or loss if applicable) on his tax return.  Since Joe purchased these shares of Amazon 10 years ago for $5,000, he will have realized a $95,000 investment gain which is most commonly taxed at 15%, therefore incurring a $14,250 tax bill.

 

Retirement Accounts

Retirement accounts have special tax advantages.  Therefore, when investments are sold within a retirement account it is not a taxable event, unlike the prior example.  However, a cash withdrawal from a retirement account is a taxable event and generates a 1099R tax form.  Similar to the previous example, if Anna opens an IRA account and Joe signs a distribution form pursuant to divorce including a copy of their separation agreement, assets transfer from Joe’s IRA to Anna’s IRA will be tax-free.