There are three parties to every divorce: the husband, the wife, and Uncle Sam. Uncle Sam is very picky about interest deductions on home mortgages, and a misstep can cost your client a tax deduction. Here’s a common situation that can trip you up, and ways to get around it.
Your client agrees to transfer the family home to his ex in the divorce, but since she can’t qualify to refinance the home, his name will remain on the mortgage. To ensure that the mortgage payment is made, he proposes paying the lender directly and reducing the support he pays to his ex-spouse.
If he deeds the house to his ex, and then pays the mortgage, can he take the mortgage interest deduction? Unfortunately, no. He can’t deduct the mortgage interest, because the mortgage must be secured by a home in which he has an ownership interest. She can’t get the deduction either, since she didn’t make the payment. Interestingly, since the mortgage is in his name, the 1098 form showing the interest paid on the mortgage will be issued in his name, and that’s what the IRS goes by when the IRS computers match his tax return to the reporting forms they have received.
But if your client doesn’t want to chance incurring the wrath of the IRS by taking a mortgage deduction to which he isn’t entitled, here’s a better solution: in the support agreement, call the mortgage payment additional spousal support. He can deduct the payment as spousal support because the payment is treated as though it was made to his ex and she made the payment.
Since his ex will have to pay tax on the mortgage payment as alimony, does she get the interest deduction? Yes if her name is on the mortgage, since she will be legally responsible for the debt. But what if the mortgage is in his name alone? I still believe she can deduct the interest, and here’s why. Treasury Regulation Sec. 1.163-1 says that if you are the legal or equitable owner, you can deduct the interest even if you aren’t directly liable on the note, as long as it is secured by the home.
If the home is jointly owned, it gets a little trickier. The payer can deduct half the payment as alimony, if it’s called support in the agreement, and the joint owners will split the interest deduction, if it continues to qualify as each of their primary or secondary residence, which is a whole ‘nother discussion.
If wife is on the deed but Ex is on the mortgage, wife made mortgage payment, but 1098 has Ex name on it. Can the wife still claim deduction?
It is my understanding that to claim an interest deduction, you must be required to make the payment, and you must actually make the payment. She is not required to make the payment by the terms of the mortgage, since her name isn’t on it, but there are two things that might still make her liable for making the payment: (1) If your divorce agreement call for her to make the payment; and (2) Since her name is on the mortgage and the house will be repo’ed if the mortgage payment isn’t make, those circumstances might be deemed to make her liable for making the payment to protect her investment. If she has questions about this, she should consult a qualified tax expert.
Follow up to previous comment. Wife was not on mortgage at any time.
Can wife get interest deduction if she makes payments on mortgage if mortgage remains in ex name for 3 years post divorce. House ownership is transferred by deed to wife as part of decree. Wife has made payments but ex gets 1098.
It is my understanding that she has to be obligated to make the payments and actually make the payments to claim the interest deduction. It is possible that her home being held as collateral would be sufficient to show her obligation (if the mortgage isn’t paid she loses the house, so she is obligated to make the payment to keep the house). You can’t take the interest deduction since you haven’t been making the payment.