My tax return was applied to a tax debt that was assigned to my ex in both the divorce decree and his bkrptcy.

I got divorced in 2009, and as a result of that divorce there was a back tax owed to the IRS from an unreported bonus check my ex-husband received from his work. In our divorce decree, it was found that I was liable for a certain portion of the back tax, which i paid, and he was liable for the rest. I learned today, that my 2009 tax return, and 2010 were applied to the 2008 tax liability that he was supposed to pay. I was due a 5300 dollar refund this year, and the just informed me that the money was applied to my 2009, and 2010 taxes, as a domino affect of the money i had paid into them going to the 2008 bill that my ex was supposed to pay. How do i go about getting this money paid to me, from either the IRS or my ex? I did file innocent spouse paperwork as a result of this.

Gilbert, AZ -

Attorney Answers (2)

Patrick S Sampair

Patrick S Sampair

Divorce / Separation Lawyer - Mesa, AZ
Answered

One of the required documents in all divoerce cases is a "NOTICE REGARDING CREDITORS." One of the purposes of this document is to make you each aware that the Court can Order that each of you pay certain debts, but the court does NOT have jurisdiction over your creditors as they are not parties to the divorce action. The Notice reads, in part:

"YOU AND YOUR SPOUSE ARE RESPONSIBLE FOR COMMUNITY DEBTS. The court usually requires/orders one spouse or the other to pay certain community debts in, or through, the Decree of Dissolution or Legal Separation. A court order that does this is binding on the spouses only, not the creditors. You and your spouse are legally responsible for these community debts whether you are married, divorced, or legally separated. These debts are matters of contract between both of you and your creditors.."

While having filed a claim of "innocent spouse" is one of your options in dealing with the IRS, the IRS may well take the position that you did receive the benefit of the funds due to the community property statutes or they may take the position that you signed a joint return.

You do have the option of taking your ex back to court for your damages and losses, since they were a result of his not obeying the court Order that he pay this debt. You should consult an attorney to help determine if it is worth pursuing.

Information provided on this site does not constitute legal advice. We offer free initial consultations that... more
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Gregory M. McCauley

Gregory M. McCauley

Tax Lawyer - Chadds Ford, PA
Answered

Filing the innocent spouse request was the proper decision to have the IRS return your funds and to remove the tax debt from you as a continuing liability. As part of the submission to request innocent spouse status most people file one form but the secret to success is filing several. The Forms are on the IRS web site or in my book TAXJAMS: Simple Solutions, see the chapter on Innocent Spouse Releif. Go with what you sent in for now, but if the request is denied you can appeal and supplement the filing by refiling all the relevant forms with more detailed information such as an affidavit or other info. Call with any questions, and best regards, Greg

Call the auditor and ask when the appeal period expires now. I cannot be responsible for your case as I am not in... more

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