My husband has 2 business & several years ago(before we were married) had gotten behind in filing his taxes & was behind on paying his taxes. He had supposedly gotten everything caught up before we were married but always has to pay a substantial amount each year in taxes. I am considering separation/divorce & want to know if I file for legal separation will I still be responsible for any of the taxes that he owes? Can I file taxes on my own as single? We have a prenup that basically states what was his before is his after and the same for me.
A lot depends on the wording of the prenup. Filing for a legal separation would be the best way to cut off any future obligation for debt. Should you have to go to court, if he incurred debt after your date of separation, the Court would likely make him solely responsible for that debt anyway. It may be possible regardless to seek innocent spouse protection through the IRS. You really should seek personalized legal assistance to address your individual concerns.
I changed the practice area on your question to tax because it is more tax-related than divorce-related.
In terms of your question: as a general matter, you are not liable for your spouse's tax debts unless you filed a joint tax return with your spouse, and then you are only liable for the joint tax debts. In your case, the tax debts your husband had before you got married were not yours and did not become yours simply because you and he got married. Also, any new tax liabilities he incurred on his own during your marriage that you are not liable for - i.e., for which you did not file a joint return - are not your taxes, they are only his.
That being said, if you and he own any joint property - e.g., if the two of you own a house and both of your names are on the deed, then the IRS (and any state tax agency) could levy on the house and try to sell it; you would get back the money from the sale of your half of the house, but the house itself could still be sold. Also, the terms of the prenuptial agreement will also come into play; although you say that it basically states that what's his is his and what's yours is yours, you would still need to review the agreement in detail to make sure you understand how it applies to his tax liabilities.
In terms of your filing status, you must continue to file as married filing separately until you have a final decree of separate maintenance or a final decree of divorce. If you're considering divorce, it would probably be a good idea to not file a joint return, although that would depend on a number of different factors that weren't in your description, so you should consult with your own retained tax professional first.
I would recommend that you retain your own competent local tax professional to discuss your situation in more detail. Things can get awfully complicated in a hurry, particularly when you mix tax debts and divorce, so you should not just rely on answers you get for free online from people whom you've never met and whom you haven't retained to advise you.
My answer does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This disclaimer is intended to be fully compliant with the requirements of Treasury Department Circular 230 and the terms thereof are fully incorporated by reference. If you wish to consult with me please contact me at [email protected] or visit my website at www.nytaxcounsel.com
Unfortunately, a legal separation would not fix any existing tax problems. It may, however, prevent future problems - as long as you do not file a joint return with your soon to be ex. There may be other options to protect yourself from past IRS problems. Go see a Tax Attorney to see if there are some answers for you.
I hope this helps.
Steven A. Leahy
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
You are only going to be liable for taxes from jointly filed returns. You can only become liable for returns from before you were married if you live in a community property state. And this is only because your joint income is considered a community asset. After divorce, both parties continue to be jointly liable for any unpaid taxes related to jointly filed returns. Innocent Spouse Relief must be obtained in this case to discharge the liability.
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