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home sale cap gains tax question in divorce, ex overseas

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vikingkidsdad

Junior Member
What is the name of your state?What is the name of your state? California

Divorce was final in September of 2005. Ex moved to Sweden with kids 5 1/2 years ago. 3 years ago we bought our house (in LA) from my parents at a favorable price (as I was still living here), and three months later my then wife asked for a divorce from her home in Sweden. She never filed for divorce, so finally in November of 2004 I filed for divorce in Swedish court which was granted by Swedish court in Sept. 2005. In Sweden, they expect you to figure out community property split, etc. on your own and only go to court as a last result.

In short, she is suddenly making things extremely difficult on the property division. I believe completely in splitting our assets 50-50, and we agreed over a year ago on a price for our LA house. It had been appraised at that point and she wanted me to sell it immediately since the price had risen drastically. I didn't want to lose my home so she gave me a choice, to either sell it or guarantee that appraisal price when I finally bought her out, even if the value of the home went down. I reluctantly agreed, hoping that prices wouldn't fall. We are about to conclude our settlement (including me buying her out of her half), and suddenly she has found out that the price has gone up even more, so she's trying to back out of the deal we made and get the current market value on the house. I'm looking for leverage to try to get her to remain honorable.

She has never lived in the house as an owner for a minute. Our divorce is final. She hasn't set foot in the country in almost 3 years. Will she owe capital gains taxes on her share of the profits? (if I can get her to stick to our original deal, her share of profits will be $237,500.00) Or does she still qualify for the "in spouse out spouse" exclusion and not owe anything? If she will owe capital gains, then perhaps I can nudge her into behaving fairly by suggesting that if she doesn't, I'll inform the IRS that she's never lived here as an owner.

I really appreciate any info. I'm already flogging myself for being so lame for not taking care of this a long time ago... but as many of you know, dragging oneself out of bed is tough enough when an unwanted divorce happens, especially when it involves an ocean between you and your kids...
 
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abezon

Senior Member
Because this is part of a property settlement, the cash she gets is not income to her. Why didn't you file for divorce in the US, where the property is located? A court would probably have awarded you the lion's share of the house & set a lower buyout price. Is the original deal in writing?

The only way you could make her pay taxes on the house is to sell it to a 3rd party. (Perhaps back to your parents?) If she's a nonresident alien, the buyer would have to withhold 10% of her share of the gross sales price & she'd file a 1040NR to get money back. She'd pay AMT on the full gains with no AMT exclusion amount. After the 3rd party sale was completed, you could buy the house back from the 3rd party by yourself.

BTW, you could threaten to force a sale through a CA court. Then the court would decide how much she should get & you'd only have to finance that amount. You might consult a divorce atty in CA about whether the house is community property at all -- fleeing the country might constitute a de facto separation in CA & make the house separate property. I suspect the price discount is also your separate property.
 

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