Client separated from husband, husband files joint

[neilbrink]

Client separated from husband in August 2007 and has filed for divorce, but husband filed their return as jointly without her knowledge and signature and took the refund. She has 3 dependent children living with her. She wants to file married filing separately and said the IRS agent she talked to on the phone agreed she needed to do that. Should I file with her separately, no dependents or with the 3 dependents. She has a very small income and would probably not have any tax liability if she were not to take the dependent exemptions. Anyone have any suggestions on this? Should she even not file and just let the lawyers figure it out? Thanks. Neil

[LindaB]

She should file MFS, she will have to mail the return if the husband already filed a joint return. There will probably be some inquiry from the IRS for both her and the husband. As far as claiming the kids, aren't they qualifying children for both parents? But she is now the custodial parent. She could claim them or not, the IRS would question both parent if she claims them, maybe the lawyers will have to settle it.

[TaxmannEA]

The IRS might also be curious about his filing a joint return and forging the wife's signature.

[cpabsd]

I had a similar situation a few years back. My client chose to let the lawyers settle it. Husband had to give 50% of refund to wife. If the husband e filed the return on line, did he really "forge" the wife's signature. It is wrong of them to file without wife's knowledge, but e file makes it too easy. Also, it brings to the forefront the need to settle those dependency exemptions in court. My client will not give up those exemptions, even though she doesn't have much taxable income.

[Lion EA]

She should check with her lawyer. He might want her to claim the children if not claiming them jeopardizes her custodial rights or child support or gives her something to bargain with or.... Or, the lawyer might want her to not claim children or file a certain way to not rile up the other side over an issue they don't want to raise, or to save their energy for the battles that are most important or.... You give her the tax implications and let her decide what to do.

[neilbrink]

Thanks everyone. I appreciate your insights.

[kcjenkins]

Just remember, while they were together most of the year, if they both claim the kids, he would win under the tie-breaker rules if he has the higher AGI. So given that, unless she has a higher AGI she should not claim the kids. No point in starting a fight that you know in advance you can not win. They lived together long enough that they both have 'custody' rights, so filing her MFS with just herself claimed is the smart thing to do. Let her lawyer deal with what share of the refund she might be entitled to, if any.

[Janitor Bob]

Client separated from husband in August 2007 and has filed for divorce, but husband filed their return as jointly without her knowledge and signature and took the refund. She has 3 dependent children living with her. She wants to file married filing separately and said the IRS agent she talked to on the phone agreed she needed to do that. Should I file with her separately, no dependents or with the 3 dependents. She has a very small income and would probably not have any tax liability if she were not to take the dependent exemptions. Anyone have any suggestions on this? Should she even not file and just let the lawyers figure it out? Thanks. Neil

It does no matter when the divorced was filed...it matters when it was FINAL...was it FINAL in 2007?

[jainen]

>>No point in starting a fight that you know in advance you can not win<<

I take exception to that attitude on general principles, kc, but in this particular case Momma WOULD win the tiebreaker rules because the longest-time test comes before the highest-AGI test.

[GeneInAlabama]

Signing someone's name is FRAUD. If she files MFS, it will rusult in an automatic audit and he will be in trouble for signing her name. Let the IRS straighten it out.

[Pacun]

If she doesn't want to cause any trouble, a 1040X is in order.

[LindaB]

If she doesn't want to cause any trouble, a 1040X is in order.

You can't amend and go from MFJ to MFS, can you?

[Pacun]

You can't amend and go from MFJ to MFS, can you?

Because I am not sure, I limited myself to... "a 1040X is in order".

Keep in mind that "She has a very small income and would probably not have any tax liability".

[neilbrink]

I take exception to that attitude on general principles, kc, but in this particular case Momma WOULD win the tiebreaker rules because the longest-time test comes before the highest-AGI test.