Does "2 out of 5 previous years" include primary (or sole) residency by ex-spouse?

[Jacques-Crouton]

If a couple who already divorced have the non-owning ex-spouse as the primary (or sole) resident of the house, then does that count as "2 out of the 5 previous years" when it comes to determining capital gains tax on the sale?

[rjs · Accepted solution]

The following is from IRS Publication 523, page 5.

Separation or divorce. You can count a home as your residence during any period when ALL of the following are true.

• You are a sole or joint owner.
• Your spouse or former spouse is allowed to live in it under a divorce or separation agreement.
• Your spouse or former spouse uses it as his or her residence (not just as a second home).
  

[Jacques-Crouton]

Does the "divorce or separation agreement" have to be legally recorded, or is an informal agreement sufficient?

[rjs]

I'm not sure whether the term "separation agreement" in the quote from Pub. 523 would include an informal agreement. If that's your situation, I suggest that you consult a local tax professional for guidance. Your original question stated that the couple was "already divorced" and referred to the "ex-spouse."

Note that an informal separation, without any kind of court order, is a totally different situation. In that situation  you are still married. You have to file your tax return as either married filing jointly or married filing separately (unless you meet the requirements to be "considered unmarried" for purposes of filing as head of household).

[Kpearlst]

I am in the same situation. I am a non resident ex spouse and my ex wife and son are living in the residence. I do have a separation agreement saying this. Now we would like to sell the home and I would like to receive the capital gains exemption however now I am re-married so would the exclusion be for $250K or $500K of profit on the sale of the house?? If you could respond to the above question I would appreciate it. Thank you! 

[NCperson]

@Kpearlst - let me get this straight - 

you are your ex-wife are owners of this home 

she still lives in the property.  You don't

now that you are selling, you are asking whether you qualify for the exclusion.  

Assuming all that is correct, 

1) how long have you and your -ex-wife owned the home?

2) has your ex-wife lived in the home 2 of the last 5 years? 

3) did you live in the home 2 of the last 5 years?