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Possessing personal knowledge and evidence of tax fraud, can I accuse one directly of a crime in declaration for Custody?

Santa Ana, CA |

Ex is Self Employed. Cheats on taxes, pays zero income tax. Admitted fraud for years both before and during our cohabitation. Continues to cheat post separation. I personally spoke with ex's accountant about the fraud. I have tax returns in possession. I have bank statements in possession. Ex attempting to use fraudulent returns to extort un-owed support. Claimed "unemployed" and $800/mo income to Support Services yet would not submit FL-150 or tax returns so they closed the case. May I allege what I have personal knowledge of ("fraud) and know I can easily prove, in my Custody Declaration for Temp Orders prior to discovery being finished? I have zero fear of being able to prove allegations. Do I need to tip-toe around this or can I just come right out with it?

Note: This is not a Divorce proceeding. Never married. Always filed seperately. In fact, inability to clean up tax mess was part of reason for separation. This is for a Declaration as part of a family law Custody case wherein I am seeking Legal and Physical Custody of my child. Child Support will also be (at some point) ordered as a matter of procedure. I am assuming ex's lawyer will want to settle via stipulation one these matters come to light (I'm sure he's currently unaware). Wondering if once this is alleged in a Declaration before the court if it is even possible to not have a judge rule punitively upon the Ex. (?)

Attorney Answers 4

Posted

This is a very sensitive situation. It could impact your share of community property assets coming out of the divorce and you could also face prosecution yourself if you knowingly signed a return that you knew was materially misstated. An innocent spouse claim might make sense but in general what you are contemplating may feel good from a “revenge” perspective but is seldom advisable in the real world. Get competent legal counsel before doing anything….

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1 comment

Asker

Posted

Sir, thanks for the prompt response. I should have noted: we never married, thus always filed seperate. No assets to separate. Ethically, this is not a "revenge" tactic either; ex is attempting to EXTORT un-owed support based on continued, fradulent filings. I am merely trying to protect myself! I have warned the ex ad infinitum about this in attempt to save their hide!

Posted

Your question raises a variety of issues and it would be best for you to discuss your next step with both a family law attorney and a tax attorney.

If the tax return at issue is a married filing joint tax return, you may be opening the door to potential civil or criminal penalties if you had knowledge of the fraud. Further, even if you lacked knowledge at the time of the filing, any additional tax assessment made to a married filing joint return will result in you owing the additional tax due with your husband. While you may be able to later claim that you are innocent (innocent spouse claim), you would have to present your case to the IRS in the hope that they relieve you of the new liability.

In addition, if your husband is forced to pay back the IRS, or if he faces criminal sanctions, your ability to collect support may be limited.

For these various reasons you should consult with an attorney prior to raising this issue.

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2 comments

David Warren Klasing

David Warren Klasing

Posted

I like Johathan's answer better than mine - but its exactly what I was thinking...

Asker

Posted

Please see my comment above and revisions re: seperate filings. Thanks.

Posted

David and Jonathan are correct in the fact that you should move slowly with an attorney at your side because of the potential exposure to you. So meet with at least one attorney before you make an important decision in this matter.

The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice based upon the query without additional details. It is highly recommended that one should seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting. Moreover, this response does not constitute the creation of an attorney-client relationship since this message is not a confidential communication because it was posted on a public website, thereby publicly disclosing the information, which is another reason to setup a confidential meeting with an attorney.

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Posted

I agree will all my colleagues . As a California Attorney and one of the very few that are Fraud Examiners ( CFE member of the Association of Certified Fraud Examiners) I can help you with this problem. http://sdmcduff.com and http://karamanlispowers.com

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