There is no simple answer to this.
There are several different views around the country about who owns a tax refund, and it's a matter of state law. In some states, the refund is considered to be owned 50-50 by spouses who file jointly. In others, it's considered to be owned in proportion to the amounts withheld from each spouse's paycheck. In still other states (including mine), you divide the refund in the same proportion as the spouses would owe tax if they filed separately. So you will have to ask a tax lawyer in your state whether there's a hard-and-fast rule. If not, and if the amount of the refund is substantial, you could end up involved in (expensive!) litigation with the trustee to determine the answer.
That said, the next pertinent questions are (a) did your husband specifically disclose his anticipated refund on his Schedule B, and (b) is his case still open? If the refund was disclosed, closing of the case worked an abandonment of all unadministered assets by operation of law. In that case, the trustee has no right to the refund. If the case is still open, your husband needs to tell the trustee about the refund so the trustee can decide what to do. If the refund was never specifically disclosed but the case is closed, your husband needs the advice of a local bankrutpcy attorney to determine whether the refund (which the trustee can't realistically pretend he didn't know would be coming) is deemed abandoned or not.
At the end of the day, you need to decide whether filing separately costs you more in taxes than the legal fees to figure all of this out.
Generally speaking, anticipated tax refunds are part of the bankruptcy estate subject to liquidation and administration by the trustee unless a valid exemption is claimed. HOWEVER: without knowing the numbers and the position of your local trustees as to equitable division of the refund in joint filings the question can't be more specifically answered.
Considering what's at stake in your situation you should not file without first retaining an experienced bankruptcy attorney in your jurisdiction to guide you through the procedural and legal complexities of bankrutpcy.
My office represents consumer debtors in chapter 7 and chapter 13 bankruptcies in Massachusetts and New Hampshire. Although this is federal law applicable across the USA, there are widely varying rules and practices from one jurisdiction to the next.
Law Offices of
Andrew D. Myers
North Andover, MA — Derry, NH
In full agreement with Attorney Meyers, please seek an experienced Bankuptcy Attorney licensed in your jurisdiction that won't charge you an arm and a leg for their representation.
Please do not take my answer to be legal advice that would establish any attorney-client relationship. Please take it as a general response from my own experience in response to your question. I hope you find it helpful.
My guess is that the case has been closed since the discharge was March 2011 (your attorney can confirm this). With the case being closed and discharged, the trustee has no claim to his or your tax refund this year.
No attorney client relationship exists unless we have a written contract. Nothing in this post should be interpreted as legal advice.
If your case has been discharged and closed, the trustee does not have any interest in your tax refund, so there should not be a problem with you getting it. Check your schedules to make sure you listed the potential tax return as an exempt asset as well. If not, and the refund is substantial, you will need to call your chapter 7 attorney for advice on whether or not the schedules need to be amended to include the refund amount and exempt it.
From your question, it sounds like your husband filed a Chapter 7 case which is now closed. Although the trustee may have had a claim against your 2010 refund, it is unlikely that that right extended to a refund of 2011 taxes. That being said, if your husband's income tax refund is subject to being offset for non-discharged taxes, current taxes, child support or any other legitimate reason, any joint refund might be lost. However, that is not a result of the BK. If you are concerned, you should consult a tax professional.