Legal Blog

What are Capital Gains, and How can Capital Gains impact my divorce?

Money growing in soil

Capital gains are the profits realized from the sale of assets such as stocks, bonds, real estate, or other investments. When an asset is sold for more than its original purchase price, the difference represents a capital gain. These gains are subject to taxation, but the amount of tax owed can vary depending on several factors, including the length of time the asset was held and the individual’s tax bracket.

In divorce cases, capital gains may become a significant consideration when dividing marital assets. Generally, the division of assets in a divorce is based on the principle of equitable distribution, which does not necessarily mean equal distribution but rather what is deemed fair by the court. When it comes to capital gains, there are several key factors to consider:

  1. Date of Valuation: The valuation date of assets can significantly impact the division of capital gains. In some jurisdictions, the valuation may be set at the date of separation, while in others, it may be set at the date of divorce. The choice of valuation date can have implications for the calculation of capital gains and the subsequent division of assets.
  2. Tax Implications: It’s essential to consider the tax implications of dividing assets with capital gains. Transfers of assets between spouses incident to divorce are generally not subject to capital gains tax at the time of the transfer. However, the receiving spouse will inherit the original cost basis of the asset, potentially leading to higher capital gains taxes when the asset is eventually sold.
  3. Qualified Domestic Relations Order (QDRO): In the case of retirement accounts such as 401(k)s or pensions, a Qualified Domestic Relations Order may be necessary to divide the assets without incurring tax penalties. A QDRO outlines how retirement benefits will be divided between spouses, including any potential capital gains tax implications.
  4. Professional Assistance: Given the complexity of capital gains taxation and its implications for divorce settlements, seeking the advice of financial and legal professionals is highly recommended. A financial advisor or tax accountant can provide valuable guidance on the most tax-efficient ways to divide assets and minimize capital gains tax liabilities.

Understanding how capital gains are treated and the potential tax implications is essential for both spouses to ensure a fair and equitable settlement. By considering factors such as the valuation date of assets, tax implications, and the use of tools like Qualified Domestic Relations Orders, couples can navigate the complexities of capital gains in divorce and work towards a mutually beneficial resolution. Seeking the advice of financial and legal professionals can provide invaluable support in this process, helping to ensure that both parties achieve a fair outcome.


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As a family law attorney, Sandra (Sandy) Brooks’ practice focuses on a wide range of aspects in regards to family law. She dedicates her time to assisting clients in domestic law matters including divorce, child custody and visitation, family mediation, spousal and child support, property division, and division of retirement benefits. Other matters that fall under her jurisdiction as a family law attorney include tax consequences of divorce, mediation, prenuptial and post-nuptial agreements, negotiating and drafting of separation agreements, domestic litigation, and post-judgment proceedings.