Ask The Taxgirl: Divorce & Taxes

Taxpayer asks:

After 17 years and one 12-year-old daughter, I divorced in October 2007. The decree stated we would file jointly for 2007. However, the idiot was not cooperative, 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 you’re in as of the year’s end. I own my home and have my child as a deduction. Do you think I’ll receive 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 knows your personal situation better than I do. I highly recommend working with a qualified accountant on 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 said you’d file jointly, given federal law on filing status, but it seems to me the best answer would have been to file with the proper status and split the baby on income and deductions.

Regardless of your filing status, I personally wouldn’t include 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 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 your accountant about 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.