I am filing a legal separation and I want to include in the decree that both parties will continue to file joint tax returns in the future. Can I do this?
If you both agree to file jointly then yes of course.
IF YOU FOUND THIS ANSWER HELPFUL PLEASE MARK IT SO. This information is provided by PEGGY M. RADDATZ, Attorney At Law as a pro bono service. YOU SHOULD CONSULT WITH AN ATTORNEY IN PERSON who has specific expertise in the area of law you are asking about.
If you are married at the end of the tax year for which you are filing the return - even if you are not living together - you can generally file a joint return.
You both have to sign the joint return and the rules regarding liability for signing the joint return will comply. If the legal separation ultimately results in a divorce you will of course lose the option of filing a joint return.
This information is provided for general informational purposes and is not intended as legal advice. An attorney licensed in your jurisdiction can answer questions specific to your specific fact situation and provide you appropriate advice as necessary based on the specific facts of your matter and the jurisdiction in which you reside.
There may be future reasons for not filing jointly, especially depending upon how close you remain and how much actual knowlege of each other's operations you both are comfortable with. (i.e. if he starts a business or invests in a tax shelter, it might make a mess for you).
Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.
No, you cannot do this, certainly not for federal income tax purposes and most likely not for state income tax purposes either (I don't practice in Arizona so I cannot properly answer under Arizona tax law). For the purpose of filing a joint federal income tax return, under section 6013(d)(2) of the Internal Revenue Code (the section that governs joint returns) "an individual who is legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married...." Thus, if you and your estranged spouse are legally separated under a decree of separate maintenance as of the end of this year, or any future tax year, then you will not be treated as being "married" under sec. 6013(d)(2) and will therefore not be allowed to file a joint income tax return with your estranged spouse. As this is a matter of federal law, which controls over any state law to the contrary, you cannot change this result by having a provision in your separation agreement that mandates continued joint filing.
Sign up to receive a 10-part series of useful information and legal advice about the divorce process.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline