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Can a prenuptial agreement change the way we file taxes?

Plano, TX |

My fiancée and I are planning to get a prenuptial agreement to keep both our pre- and post-marital income separate.

Since Texas is a community property state, we would normally be expected to split our income 50/50 for tax purposes, even if we filed separately.

Now for the questions:

1) With the prenup, would we be allowed to keep our income separate when filing separately?

2) If so, would we have to notify the IRS of our special circumstances? Could we still e-file?

3) If we eventually decided to file taxes jointly, could this be considered commingling and affect the validity of the prenup, or can taxes be filed jointly without affecting the separation of the actual income for property division purposes?

Thank you!

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Attorney answers 1


Prenuptial agreements often contain provisions about how taxes will be filed in addition to how wages as well as investment income will be allocated between the parites. The prenup can specifically state that a joint tax return doesn not amount to commingling if that is a concern in your state. I don't think you can opt to file with a separate status; it would have to be married, filing separately. By controlloing the allocation of the tax liability, you can still have the advantage of filing joint return, while each remains responsible for their own taxes. Of course you should consult with a CPA or other tax advisor regarding the tax provisions for your prenup.

This is for informational purposes only and is not legal advice upon which anyone should rely. Nor does it create any attorney client relationship.

Stanton L. Cobb
Board Certified Marital & Family Law Specialist
Fellow - American Academy of Matrimonial Lawyers
P.O. Box 149223
Orlando, FL 32814-9223
Tel. (321)972-4643
Fax (407)374-2499