Taxpayer asks:
After 17 years and one 12yr old daughter, I was divorced in October 2007. The decree stated we would file jointly for 2007. However, the idiot was not co-operative and I had no W2’s . (He hasn’t paid child support either) My accountant said I could file for 1/2 of his income. I’m not a stupid woman , in all the paperwork I had collected I found his last paystub. (He quit his job). This doesn’t violate my decree as I believe IRS law is ” the state your in as of the years end. I own my home and have my child as a deduction. Do you think I’ll recieve a refund?
Taxgirl says:
You’re right that your filing status should be your status as of the end of the year. This means that if you were single (or head of household) as of December 31, 2007, you should file as such. You can read more about filing status here.
Clearly your accountant is more aware of your personal situation than I am. And I highly recommend that you work with a qualified accountant with respect to this matter.
Here’s my gut on this situation: you can’t make your ex-spouse file jointly with you. I’m not sure why the decree stated that you’d file jointly considering the federal law about filing status, but it seems to me that the best answer would have been to file with the proper status and split the baby on income and deductions.
Notwithstanding your filing status, I personally wouldn’t file including your ex-spouse’s income without a form W-2. First, a form W-2 will not always correspond with a pay stub for a lot of reasons – including taxable benefits or additional withholding – so that the information that you include may not match what the IRS has on file. If the form W-2 is in your husband’s name, he would be required to file – and you don’t know that he hasn’t already. Additionally, if you’re expecting a refund due to excess withholding, it’s going to be difficult (if not impossible) to get a refund without your ex-spouse’s consent and signature. And not that you’re considering it, but just a warning to ALL folks out there that forging a spouse’s signature on a return is not an option…
Consult with your accountant as to how to proceed. But you might want to consider filing properly for 2007 and returning to court to resolve the financial pieces after the fact. IRS is not going to want to play divorce court – and the result of your attempt to file without the ex-spouse’s consent will likely be more trouble than it’s worth.
For more information on divorce and taxes, you can check out my prior post on the subject.
Good luck.
Before you go: be sure to read my disclaimer. Remember, I’m a lawyer and we love disclaimers.
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