Skip to main content

Can my Ex make me amend my return & does he have a case?

Algonquin, IL |

Not yet divorced ; I paid for more than half of my child daycare expenses in 2012 and my ex is in arrears on child support so after figuring out which was best for me i filed my taxes Head of Household and claimed both kids , yes without his knowledge ; There was and still is no legal document that addresses filing status or claiming either child . He's threatening to make me amend my return if i don't sign the marriage settlement agreement that he came up with . If he takes me to court will he have a strong case for the amendment ?

Lived apart all of 2012, kids reside with me. He made 90K, I made 38K, it was in my better interest to file H of H because i qualified for EIC.

+ Read More

Attorney answers 5

Posted

if you are not yet divorced, you do not have an ex. he is your husband.

in lake county, if your filing as you did and his having to file married filing separately means together you two pay more tax than if you filed jointly, then the judge can, and often does, consider that dissipation. a waste of marital asset. if the judge finds your doing this is dissipation, then your husband gets reimbursed some of the dissipation. assume half.

i doubt the court can force you to file an amended return. but if you do not, the court could consider it dissipation.

based on your limited facts, yes, i think your husband, there is no ex, has a strong case for dissipation.

there is no legal document addressing filing status or claiming children as exemptions as the case is not done yet. you are not yet divorced.

this was probably not a very good move on your part.

you really need to see lawyer.

Asker

Posted

I did tell my divorce atty I was filing and how i was filing and he didnt advise me not to, of course he hasn't done much of anything for me. I understand the dissipation aspect but when i claimed dissipation for my husband supporting his girlfriend and her daughter it was denied. He admitted she pays no rent or utilities; isn't that dissipation? He made 90K i made 38K, i'm not wasting funds by any means. I realize its hard to answer questions w/out all the facts. thx

Posted

You really should be discussing this matter with your divorce attorney; she or he will be familiar with all of the facts and circumstances and can give you reliable advice, unlike the rest of us here.

That being said, no one can force you to file an amended tax return, not even the IRS. That doesn't mean that there might not be consequences if you don't file an amended return, but you cannot be forced to do so. I would certainly not advise you to file an amended return under duress, which it sounds like what your estranged husband is trying to do.

In terms of the filing status you can claim, unless you have a decree of legal separation from a court (it sounds as if you do not), you cannot file as single, or as head of household, but must instead file as married filing separately. I understand the concern the other attorney voiced about a court treating a filing as married filing separately to be a dissipation of assets if filing jointly would have produced a lower tax bill; however, I am generally very wary of couples in the process of separation or divorce filing joint returns because it essentially means that you will be on the hook for any funny business your estranged husband pulls on that joint return.

My answer does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This disclaimer is intended to be fully compliant with the requirements of Treasury Department Circular 230 and the terms thereof are fully incorporated by reference. If you wish to consult with me please contact me at dana@nytaxcounsel or visit my website at www.nytaxcounsel.com

Gary L. Schlesinger

Gary L. Schlesinger

Posted

no. she could file h or h if she and spouse were not living together for last six months of the year and the child resided with her. see paragraph 173 of the master tax guide.

Dana Whitney Atchley

Dana Whitney Atchley

Posted

You're correct; I had overlooked that exception.

Posted

Yes. Possibly if the court believes there will be a greater refund if filing together. Go see a lawyer ASAP. You are still married and can only file married togeter or married separately. If you filed anything else you violated the law. You should have waited to file until that issue was resoved by agreement of the parties or by the court.

IF YOU FOUND THIS ANSWER "Helpful" or " The Best Answer" YOU CAN THANK ATTORNEY RADDATZ BY MARKING IT SO because Avvo awards the attorney points. MS. RADDATZ is donating her time and talent by answering questions to help those in need of legal information. This is NOT a consultation and in no way creates an attorney-client relationship. YOU SHOULD ALWAYS PERSONALLY CONSULT WITH AN ATTORNEY IN YOUR LOCAL AREA who has specific expertise in the area of law you are asking about.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

no, she could file h or h if for the last six months of the year she and the spouse did not live together and the child lived with her. see paragraph 173 of the master tax guide.

Peggy M. Raddatz

Peggy M. Raddatz

Posted

the facts do not reflect that at all

Peggy M. Raddatz

Peggy M. Raddatz

Posted

i always answer based on the facts presented. As such I stand on my answer.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

but you said she only has two choices--married joint or married separate. that is not true. if she meets the h of h test, there is a third choice and thus she perhaps did not violate the law.

Asker

Posted

lived apart all of 2012, kids reside with me.

Peggy M. Raddatz

Peggy M. Raddatz

Posted

well yes she only has 2 choices based on the facts presented. I do not add facts to the Askers question.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

peggy, she never said that they lived separate or together. you assumed together in your answer,

Peggy M. Raddatz

Peggy M. Raddatz

Posted

ok then you can file head of household. thanks for responding to our discussion and setting the facts straight! Thanks Gary.

Peggy M. Raddatz

Peggy M. Raddatz

Posted

it proves just how fact driven these issues and questions are!

Posted

I add only to echo what the incredibly experienced attorney Gary L. Schlesinger just advised you. I would highly recommend you consider his advice and further reach out to him to assist you in this matter.

You really need the assistance of an experienced attorney for what you have described.

Good luck.

This answer is marginal legal advice and does not constitute an attorney-client relationship. Every client and case is unique. The best advice is to always consult with an attorney. Free legal resources at www.ZippToCourt.com

Posted

He is not your ex-husband yet. The Court can make both of you review your returns and direct you both to prepare the return that generates the maximum refund. This is designed to preserve a marital asset and provide the maximum income for support of the children. This is not done for what is best for either of the parties but the children. The Court can also apportion the refund to each party and set over a portion of the child support payor's portion to go for child support as income. You may have acted prematurely here. As I am often in Court call my assistant Dan London at 3102-807-3990 to set up a private telephone consultation. At the consultation we can discuss the confidential details we need to craft a strategic plan. These details should not be broadcast over the Internet.

This is a general answer and does not address the specifics of your individual case. To give the specific answer you need our firm needs you to come in for a consultation.

Get Avvo’s 10-part divorce email series

A weekly guide with tips and legal advice for each stage of the process.

Divorce topics

Recommended articles about Divorce

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer