The IRS sets your filing status for the whole year based on whether you are legally married on December 31. If your Texas divorce is final by then, you file as single or head of household for all of 2026. If it is not, you are still married for tax purposes for the entire year. Texas also requires a 60-day wait after the divorce petition is filed, so a divorce filed after November 1, 2026 cannot be final before 2027.
That timing affects your tax bracket, your standard deduction, who claims the children and how much you may owe or get back. Below, our San Antonio divorce lawyer team explains how divorce and taxes work together in Texas and what to do before the end of the year.
Key takeaways
- December 31 decides your filing status. Divorced by that date means unmarried for the whole year. Still married on that date means married for the whole year (IRS Publication 504).
- Texas requires a 60-day waiting period. A court cannot grant a divorce before the 60th day after the petition is filed, except in certain family violence cases (Texas Family Code § 6.702).
- Alimony is no longer deductible. For divorces finalized after 2018, the payer cannot deduct spousal support and the recipient does not report it as income.
- Child support is never taxable and never deductible.
- Only one parent can claim each child. The parent the child lives with most nights claims the child unless they sign IRS Form 8332.
- A QDRO can protect retirement savings from the 10% early-withdrawal penalty when a 401(k) or pension is divided.
Why does December 31 matter for divorce and taxes?
| Your status on December 31 | Filing options for that year |
|---|---|
| Divorce final | Single, or head of household if you qualify |
| Still married, living together | Married filing jointly or married filing separately |
| Still married, living apart for the last 6 months of the year with a child at home | Married filing jointly, married filing separately, or possibly head of household (see below) |
Can I still finalize my divorce before the end of 2026?
Probably not, if you have not filed yet. Texas Family Code § 6.702 says a court may not grant a divorce before the 60th day after the petition is filed. A petition filed after November 1, 2026 cannot be finalized until 2027.
Even if your case was filed earlier, a fast finish is not guaranteed. Bexar County judges need a signed agreement or a final hearing, and courts close for the holidays. If your case has been pending for more than 60 days and you and your spouse agree on everything, ask your divorce attorney whether a December prove-up hearing is possible.
The one exception to the waiting period involves family violence. A court can waive the 60 days if the other spouse has been convicted of, or received deferred adjudication for, family violence against you or your household, or if you have an active protective order based on family violence. If you are in an unsafe situation, safety comes before tax planning. Call 911 in an emergency or the National Domestic Violence Hotline at 1-800-799-7233.
Before you file, also confirm you meet Texas residency rules: one spouse must have lived in Texas for six months and in the county where you file for 90 days. Our complete guide to divorce in Bexar County walks through each step.
Is it better to be divorced or married on December 31?
It depends on your income, your children and how well you and your spouse cooperate. There is no single right answer, but these patterns are common:
- Staying married through December 31 often helps when one spouse earns much more. Filing jointly can put the household in a lower bracket than two separate returns would.
- Finalizing first may help a parent who will have the children. Head of household status has wider tax brackets and a larger standard deduction than single status.
- Married filing separately is usually the most expensive option. It often loses access to credits and deductions. It can still make sense when you do not trust your spouse’s reporting.
Run the numbers with a CPA before you make timing decisions based on taxes. Tax savings should never be the only reason to rush or delay a divorce.
Should we file a joint tax return while our divorce is pending?
You can, but think it through first. When you sign a joint return, both spouses are legally responsible for all of the tax, interest and penalties on it, even after the divorce. If your spouse hides income or overstates deductions, the IRS can come after you.
If you file jointly while divorcing, your attorney can include terms in the decree that:
- Say how any refund will be divided or any balance due will be paid
- Require each spouse to cover tax caused by their own unreported income
- Require both spouses to cooperate if the IRS later audits that year
If you already filed jointly and your spouse’s errors created the debt, you may qualify for IRS innocent spouse relief.
Can I file as head of household if I am still married?
Possibly. The IRS treats you as “considered unmarried” for head of household purposes if all of these are true:
- You file a separate return.
- You paid more than half the cost of keeping up your home for the year.
- Your spouse did not live in your home during the last six months of the year.
- Your home was the main home of your child, stepchild or foster child for more than half the year.
- You can claim the child as a dependent, or could except that you released the claim to the other parent with Form 8332.
If you moved out or your spouse moved out by June 30, 2026, check this option with your tax preparer.
How does Texas community property affect my taxes during divorce?
Texas is a community property state, which changes the math if you file separately. Spouses who file separate returns while still married generally must each report half of the community income, including half of each other’s wages. The rules are explained in IRS Publication 555, Community Property.
Community property rules also decide who gets a tax refund for a year you were married. A refund on a joint return filed during the marriage is usually community property, and your decree should say how it is split. Learn more in our post on how property is divided in a Texas divorce.
Is alimony or spousal maintenance taxable in Texas?
Not for divorces finalized after December 31, 2018. Under the federal tax law that took effect in 2019, the paying spouse cannot deduct alimony, and the receiving spouse does not report it as income (IRS Tax Topic 452). This applies to court-ordered spousal maintenance under the Texas Family Code and to contractual alimony in an agreed decree.
Because the payer no longer gets a deduction, the tax change can affect how much support is negotiated. A San Antonio alimony lawyer will consider the after-tax cost of every proposal.
Is child support taxable or deductible?
No. Child support is not deductible for the parent who pays it and not taxable income for the parent who receives it. That rule has not changed. Learn how Texas calculates support on our child support lawyer page.
Who claims the children on taxes after a Texas divorce?
The IRS gives the child to the custodial parent, meaning the parent the child lived with for more nights during the year. That is true even if your decree says otherwise, unless the custodial parent signs a release.
To let the other parent claim the child tax credit, the custodial parent signs IRS Form 8332, and the other parent attaches it to their return. Some benefits cannot be transferred with Form 8332. Head of household status, the earned income credit and the dependent care credit stay with the custodial parent.
To avoid disputes every April, a well-drafted decree should:
- State which parent claims each child, and in which years
- Require the custodial parent to sign Form 8332 by a set date
- Make the release conditional on child support being current
Under a Texas standard possession order, the parent with the right to designate the child’s primary residence usually has more overnights. If you share possession close to 50-50, count the nights carefully. Our child custody lawyer team can help you plan a schedule that fits your family, including holiday parenting time.
How do you divide retirement accounts without tax penalties?
Use the right court order for each type of account. Dividing retirement savings the wrong way can trigger income tax and a 10% early-withdrawal penalty.
| Account type | How it is divided | Tax notes |
|---|---|---|
| 401(k), 403(b), pension | Qualified domestic relations order (QDRO) | A payout to the former spouse under a QDRO avoids the 10% penalty, though income tax still applies. A rollover to an IRA defers tax. |
| IRA | Transfer incident to divorce, as stated in the decree | No tax on the transfer. Later withdrawals before age 59½ may be penalized. |
| Military retired pay and TSP | Military retired pay order and TSP court order | Special federal rules apply. See our military divorce guide . |
If you need cash from a 401(k) as part of your settlement, the QDRO is often the only way to take it without the penalty. Plan this before the decree is signed.
What about the house and other property?
Transfers of property between spouses as part of a divorce are generally tax-free. The spouse who receives an asset also takes on its original tax basis, and with it the future capital gains tax. A $300,000 brokerage account with $150,000 of built-in gains is worth less after tax than $300,000 in cash.
For the family home, each spouse may be able to exclude up to $250,000 of gain when it is sold, if ownership and use rules are met. Timing the sale before or after the divorce can change how much gain is protected. Complex estates with businesses, rental property or stock options call for a high-asset divorce attorney working alongside a CPA.
Year-end checklist if you are divorcing in Texas
Complete these steps before December 31 if you can:
- Talk with a divorce attorney about whether finishing in 2026 is possible or wise.
- Ask a CPA to compare joint, separate and head of household returns for your situation.
- Gather the last three years of tax returns, W-2s, 1099s and 2026 pay stubs.
- Download year-end statements for bank, brokerage, retirement and HSA accounts.
- Write down the dates you and your spouse lived apart, for head of household rules.
- Keep a calendar of the nights each child spends with each parent.
- Update your Form W-4 with your employer after the divorce so your withholding matches your new status.
- Update beneficiaries, your will and powers of attorney after the decree. Our estate planning attorney team can help.
Frequently asked questions
If my divorce is final on December 31, am I single for the whole year?
Yes. If the judge signs your final decree on or before December 31, the IRS treats you as unmarried for the entire year. You file as single or, if you qualify, head of household.
Can I get divorced in Texas in less than 60 days?
Only in limited family violence cases. Texas Family Code § 6.702 bars a court from granting a divorce before the 60th day after filing unless the other spouse has a family violence conviction or deferred adjudication against you or your household, or you hold an active protective order based on family violence.
I filed for divorce in December. How do I file my 2026 taxes?
You are still married for 2026. You can file jointly, file separately, or possibly file as head of household if you meet the “considered unmarried” test.
Do I have to report alimony as income in Texas?
Not if your divorce was finalized after 2018. Spousal maintenance and alimony under those decrees are neither taxable to the recipient nor deductible by the payer.
Can my ex claim our child if the decree says so?
Only if the custodial parent signs IRS Form 8332 or a similar written release. Your decree can require the custodial parent to sign it.
Who gets our tax refund in a Texas divorce?
A refund for a year you were married is usually community property. The decree should state how it is divided.
Talk with a San Antonio Divorce Lawyer Before the Year Ends
Divorce timing and taxes are connected, and the decisions you make in the next few weeks can affect your finances for years. The Law Firm of Joseph Lassen helps families in San Antonio and the surrounding Texas communities plan their divorce with the full financial picture in mind.
Contact our office or call 210-625-6540 to schedule a free family law consultation.
About the author: Joseph Lassen is a Texas family law attorney who represents clients in divorce, child custody, child support and spousal maintenance cases in Bexar County, Texas.
This article is for general information only and is not legal or tax advice. Tax rules change and depend on your facts, so talk with a CPA or tax professional about your situation.