I have filed for divorce, the hearing is 5 mo. away. He has all the paperwork, etc. for the taxes. He has not filed. He was expecting $32k refund, prior to divorce filing, but had not had his accountant file. I suspect he will try to add this to the divorce as part of distribution of assets, but I would like the filing done soon, and my half the taxes. What can I do, can he be compelled to file? Can he withhold my share? Can he file without my signature? We filed a joint extension, so can he suddenly file separate? The ext. will be up before divorce hearing. What if I ask him to pay me in advance my share of the return when I sign the papers. If he gets the electric refund, I will never see a penny. I would like my half refund asap as he's cut me off finances/have no income. Ideas?
Have you filed for divorce without an attorney? If so, I would recommend that you hire an attorney asap. I would have the attorney see what he could do to obtain a court order directing your soon-to-be ex to file the returns. I would argue that this delay in filing has an adverse impact on you and on your IRS refund.
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Estate Planning Attorney
This is mostly a question about divorce law. I see you also posted it with that area; so, you may get a more full answer from the divorce lawyers.
I will respond to your tax questions here:
1. Can he be compelled to file? Yes, the government compels him to file. You also are required to file. So, you, too are compelled to file. Sensible married couples file jointly and save a fair amount of taxes. If you can not agree to do that, you will each pay a higher tax on your separate returns.
2. Can he withhold your share of any refunds? if you file separately, you will have a check form the IRS payable to you. He cannot cash it. If you file jointly, you can indicate on the joint return how the refund is paid. If it is directly deposited in a joint account, either one of you can withdraw all of it. If it is paid with a check, it will be made payable to both of you. Both of you will have to endorse the check to deposit it (although a bank might make a mistake and deposit it into a joint account and then one of you could take it all). You could protect yourself in general by making sure that all joint bank accounts are closed now.
3. Can he file without your signature? only if he files a separate return and pays a higher tax.
4. File separately after a joint extension? Yes, he can file separately after filing a joint extension. As long as the government owes you money, there is not a penalty for filing after the due date in most circumstances.
5. Get Paid up front. Good for you; probably bad for him.
6. Ideas. How about divorce mediation? You will save a lot of legal fees and drama to sit down with a professional mediator and work out your issues.
I am not a divorce lawyer; since you filed, I expect that you have a divorce attorney. If you do not have an attorney, I strongly recommend that you retain one to assist you.
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5 lawyers agree
I would add to the good advice set forth by the other lawyers, that you should be especially cautious filing a joint return with your soon-to-be ex. Joint liability will make you responsible for his understatements of tax - you need to be sure this return if filed joint is accurate! You can also get your divorce attorney to write into the settlement agreement that he will be liable for any future tax debts growing out of this return, if any, but such an agreement will not bind the IRS.
Please note that this is not legal advice, and should not be relied upon as such. Always consult with a competent tax professional to discuss your specific situation!