Renting Out Your Vacation Home for Part of the Year
The tax treatment depends on how many days it's rented and your level of personal use. Personal use includes vacation use by your relatives (even if you charge them market rate rent) and use by non-relatives if a market rate rent is not charged.

If you rent the property out for less than 15 days during the year, it's not treated as “rental property” at all.

If you rent the property out for more than 14 days, you must include the rent you receive in income. However you can deduct part of your operating expenses and depreciation, subject to the following rules. First, you must allocate your expenses between the personal use days and the rental days. For example, if the house is rented for 90 days and used personally for 30 days, then 75% of the use is rental (90 days out of 120 total days of use). You would allocate 75% of your costs for maintenance, utilities, insurance, etc., to rental. You would allocate 75% of your depreciation allowance, interest, and taxes for the property to rental as well. (The personal use portion of interest and taxes are separately deductible, but depreciation on the personal use portion isn't allowed.)

If the rental income exceeds these allocable deductions, then you report the rent and deductions to determine the amount of rental income to add to your other income. If the expenses exceed the income, you may be able to claim a rental loss. This depends on how many days you use the house for personal purposes.

Here's the test: If you use it personally for more than the greater of (a) 14 days, or (b) 10% of the rental days, you are using it “too much,” and you cannot claim your loss. In this case, you can still use your deductions to wipe out the rental income, but you cannot go beyond the income to create a loss. Any deductions you cannot use are carried forward and may be usable in future years. If you are limited to using deductions only up to the amount of rental income, you must use the deductions allocated to the rental portion in the following order: (1) interest and taxes, (2) operating costs, (3) depreciation.

If you “pass” the personal use test (i.e., you don't use the property personally more than the greater of the figures listed above), you must still allocate your expenses between the personal and rental portions. In this case, however, if your rental deductions exceed rental income, you can claim the loss. (The loss is “passive” however, and may be limited under the passive loss rules.)

Taxes and Divorce
Unfortunately, in addition to the difficult personal issues the process entails, several tax concerns need to be addressed to ensure that tax costs are kept to a minimum and that important tax-related decisions are properly made. 

Support provisions. When one spouse must make support payments to the other upon divorce or separation, the payments are deductible by the pay or and taxable to the payee if they qualify under the tax rules for “alimony.”

Support payments for children (“child support”) aren't deductible by the paying spouse (or taxable to the recipient). These include payments specifically designated as child support as well as payments which otherwise might look like alimony, but are linked to an event or date related to a child.

Tax planning for support payments generally seeks to make them deductible if the paying spouse is in a higher tax bracket than the recipient, as is often the case. The tax savings for the paying spouse can be shared with the recipient through higher payment amounts or other benefit provisions. For example, if having payments qualify as alimony will save the paying spouse $5,000 in tax and will cost the receiving spouse only $2,000 (determined by multiplying the alimony amount by the individual's marginal income tax bracket), the paying spouse can offer additional payments in the divorce negotiations to cover the recipient's tax cost and a share of the additional tax savings.

Dependency exemptions. To some extent, the parties can determine who is entitled to claim the dependency exemption for their dependent children. The exemption for the child goes to the spouse who has legal custody of the child. However, that spouse can waive his or her right to the exemption, thus allowing the non custodial spouse to claim it. In general, tax planning calls for the spouses to agree to have the exemption go to the spouse who can extract the greater tax benefit from it.

The dependency exemption entitles the spouse who claims it to more than just the exemption. For example, the child tax and the higher education (Hope and Lifetime learning) credits are only available to the spouse who claims the child as a dependent. (Note, however, if the custodial parent waives the right to the exemption, the custodial parent can still claim the child care credit for qualifying expenses if the child is under 13.)

Property settlements. When property is split up in connection with a divorce, there are usually no immediate tax consequences. Thus, property transferred between the spouses won't result in taxable gain or loss to the transferring spouse. Instead, the receiving spouse takes the same basis (cost) in the property that the transferring spouse had. (The receiving spouse may have to pay tax later, however, when the recipient spouse sells the property.)

Personal residence. In general, if a married couple sells their home in connection with divorce or legal separation, they should be able to avoid tax on up to $500,000 of gain (as long as they owned and used the residence as their principal residence for two of the previous five years). If one spouse continues to live in the home and the other moves out (but they remain owners of the home), they may still be able to avoid gain on the future sale of the home (up to $250,000 each), but special language may have to be included in the divorce decree or separation agreement to protect the exclusion for the spouse who moves out. If the couple doesn't meet the two year ownership and use tests, any gain from the sale may qualify for a reduced exclusion by reason of unforeseen circumstances.

Pension benefits. A spouse's pension benefits are often part of a property settlement. When this is the case, the commonly preferred method to handle the benefits is to get a “qualified domestic relations order (QDRO).” A QDRO gives one spouse the right to share in the pension benefits of the other and taxes the spouse who receives the benefits. Without a QDRO the spouse who earned the benefits will still be taxed on them even though they are paid out to the other spouse.

A QDRO isn't needed to split up an IRA, but special care must be taken to avoid unfavorable tax consequences. For example, if an IRA owner were to cash out his IRA and then pay his ex-spouse her share of the IRA as stipulated in a divorce decree, the transaction could be treated as a taxable distribution (possibly also triggering penalties), for which the IRA owner would be solely responsible. However, the taxes and penalties can be avoided, if specific IRS-approved methods for transferring the IRA from one spouse to the other are used. For example, money can be transferred tax-free from one spouse's IRA to the other spouse's IRA in a trustee-to-trustee transfer, as long as the transfer is required by a divorce decree or separation agreement. Also, the transfer shouldn't take place before the divorce or separation is final, or it may be treated as a taxable distribution.

Estate planning considerations. The upheaval a divorce causes in family relations and property holdings makes it imperative for the parties to reassess their wills and estate plans in connection with the divorce. First, the typical will in which all property is left to a surviving spouse is no longer likely to reflect the testator's wishes. Mutual family goals, often incorporated in reciprocal wills, are likely to have changed substantially. Second, the property to be left by the spouses may have changed hands via a property settlement. One spouse may be getting substantial holdings he or she didn't previously possess, making it necessary to devise a new estate plan. Finally, guardianship and trustee issues for surviving minor children must be addressed. That is, who will manage the assets of, and serve as guardian for, minor children in the event of the death of the parents.

Medical insurance. If your spouse participates in an employee group health plan that is subject to COBRA, you should know that the plan has the obligation to make COBRA health care continuation coverage available to you, as a qualified beneficiary, if there is a divorce or legal separation. This availability of health coverage extends for 36 months, beginning on the date of the divorce or legal separation. You, however, would have to pay for the coverage (unless, of course, the divorce court orders your spouse to pay for it). This option to buy COBRA health care coverage is available to you even if your spouse discontinued your coverage while the divorce was pending.

Tax records. Make sure you get copies of, or access to, any records or documents that can have an impact on your tax situation. You need copies of joint returns filed with your spouse along with supporting documentation. Also, records relating to the cost of jointly owned property or property transferred to you in connection with the divorce are essential. You will need to establish cost when these assets are eventually sold. And, of course, all documents relating to the divorce or separation itself should be retained for tax (and other legal) purposes.

Filing status. The timing of your divorce or separation can have an impact on how you file your tax return. If a “final” decree or divorce or, in the case of separation, decree of separate maintenance, is issued by the end of the year, then you can't file your tax return for the year as a married person. Your filing status will be “single.” However, if you cover more than half the costs of a household in which a child of yours lives, you may qualify for more favorable “head of household” rates.

If an above-described decree hasn't been issued by year-end, you are treated as still married even if you are separated from your spouse under a separation agreement or “nonfinal” decree. In this case, you may still file jointly with your spouse. This filing status may result in lower overall tax for you and your ex-spouse, but may put you at risk for an unpaid tax obligation of your spouse (although you may be protected under “innocent spouse” rules, and an election to limit your liability may be available in certain circumstances). It also requires contact between the parties to prepare the joint return, which may not be desirable in some circumstances. Further, the alimony deduction discussed above can't be taken on a joint return.

The other available filing status is “married filing separately,” which is the least favorable status. However, again, if you cover more than half the costs of a household in which a child of yours lives, and your spouse hasn't been a member of the household during the last six months of the year, you may qualify for a more favorable filing status.

Deducting legal fees. Finally, to what extent can you deduct the legal fees incurred in connection with the divorce? In general, since a divorce is a “personal” undertaking, the legal fees are nondeductible. However, as you can readily see from this discussion, many complex tax issues can be involved in a divorce. And a fee paid for tax advice (including setting up the support arrangement), is deductible as a miscellaneous itemized deduction. (This means it's added to other items in this category, if any, e.g., investment expenses, and is deductible to the extent the total exceeds 2% of adjusted gross income.)

To get a tax deduction for the part of your legal fee that represents tax advice, it's important to have your attorney indicate on his or her bill to you what portion represents tax-related service. If your attorney merely submits a bill “for legal services rendered,” you may have difficulty convincing IRS how much, if any, is deductible.

Other legal fees in connection with divorce that may save you taxes include costs to collect alimony payments (but not costs to resist collection). Also, if legal work is involved in getting marital assets, part of the fee that is allocable to the property can be added to its basis. This can save you tax when the property is disposed of.