December 17, 2020

Impact of President-Elect Biden’s Tax Proposals on Divorce

By Eric A. Purvis, CPA/ABV, MST, CVA, Partner, Tax & Business Services

Impact of President-Elect Biden’s Tax Proposals on Divorce Marital Dissolution

As the country awaits the transition to a Joe Biden presidency, now is a good time to consider the impact Biden’s tax proposals might have on divorce planning.

Marcum advisors are often retained to work with attorneys and divorcing couples to estimate the after-tax cash flow that will be available to the husband and wife following a divorce, to help determine an appropriate level of marital support. We also are called upon to testify at divorce trials and hearings regarding marital support and tax matters. To that end, we prepare cash flow scenarios estimating the income that will be available post-divorce, including marital support received and paid, and the income taxes associated with that income.

Our analyses consider current tax law including changes under the Tax Cuts and Jobs Act (TCJA) of 2017. With a Biden presidency on the horizon, we need to begin thinking about potential new tax changes and how those changes may impact divorcing couples going forward.

Some of President-Elect Biden’s tax proposals that may impact cash flow available to divorcing couples include the following:

Increase in individual income tax rates

TCJA generally reduced tax rates overall and reduced the highest individual income tax rate from 39.6% to 37%. The Biden plan would revert the top individual income tax rate for taxable incomes above $400,000 to 39.6%.

Social Security tax

The Biden plan would impose a 12.4% Old-Age, Survivors, and Disability Insurance (Social Security) payroll tax on income earned above $400,000, half of which (6.2 percent) is paid by employees. Currently, Social Security tax is imposed on wages up to $137,700 ($142,800 in 2021). Wages in excess of the Social Security wage limit are not subject to Social Security tax. Under the Biden proposal, a “donut hole” would be created whereby wages between the wage cap and $400,000 are not taxed; wages in excess of $400,000 would then be subject to Social Security tax.

Long-Term capital gains

The Biden plan would tax long-term capital gains and qualified dividends at the ordinary income tax rate of 39.6% on income above $1 million, rather than at the current top capital gains rate of 20%. Among others, this will impact business owners considering selling a closely held business.

Itemized deductions

The Biden plan would cap the tax benefit of itemized deductions to 28% of value for those earning more than $400,000 and restore the Pease limitation on itemized deductions for taxable income above $400,000. Taxpayers earning above that income threshold with tax rates higher than 28 percent would face limited itemized deductions.


The Biden plan includes two significant proposals concerning tax credits related to children. These proposals, if passed, expand dependency exemptions for children that will benefit the marital estate.

  1. Child and Dependent Care Tax Credit (“CDCTC”). The Biden plan expands the CDCTC from a maximum of $3,000 in qualified expenses for one qualifying child ($6,000 for more than one qualifying child) to $8,000 ($16,000 for multiple dependents) and increases the maximum credit rate from 35 percent to 50 percent for taxpayers.
  2. Child Tax Credit (“CTC”). Under TCJA, the dependency exemption was eliminated and was replaced by an expanded CTC. The CTC provides a tax credit of up to $2,000 per child under age 17. The CTC begins to phase out for single taxpayers with adjusted gross income (AGI) over $200,000 and married taxpayers with AGI over $400,000. The Biden plan increases the CTC from a maximum credit of $2,000 to $3,000 for children ages 6 to 17, and $3,600 for children under age 6. The CTC would also be fully refundable, removing the $2,500 reimbursement threshold and 15%phase-in rate.

Corporate tax rates

TCJA reduced corporate tax rates from a maximum of 35% to a flat 21% on taxable income. The Biden plan would increase the corporate income tax rate from 21% to 28%.

Qualified Business Income Deduction (“QBID”)

TCJA also provided for the QBID (Section 199A), which allows a tax deduction of up to 20% on certain income for the owners of flow-through entities (S corporations and partnerships). The Biden plan would phase out QBID for taxpayers with taxable income over $400,000.

It is difficult to predict which, if any, of these tax proposals will become law, what the final law would look like, or when proposed changes would take effect. However, couples should be aware of the proposed changes and consider how they may affect after-tax income available to both parties as they maneuver through the divorce process.

Please contact your Marcum professional for any questions or assistance.

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