Enforcing Tax Refund

[StepChylde]

What is the name of your state? IN

My divorce was final right after the first of the year. My divorce decree states that I "will receive any tax refund or pay any tax liability which the parties may be entitled to or have imposed for the 2006 tax year"

My ex has already informed me that she now plans to file her own taxes and keep any refund she receives. I will not be able to e-file before her (I won't have her w-2s), and I am not sure how to proceed.

I am assuming that I will have to ask the court to find her in contempt and have her return her refund to me, is that correct? In the meantime, how do I go about filing?

Thanks in advance.

 

[LdiJ]

What is the name of your state? IN

My divorce was final right after the first of the year. My divorce decree states that I "will receive any tax refund or pay any tax liability which the parties may be entitled to or have imposed for the 2006 tax year"

My ex has already informed me that she now plans to file her own taxes and keep any refund she receives. I will not be able to e-file before her (I won't have her w-2s), and I am not sure how to proceed.

I am assuming that I will have to ask the court to find her in contempt and have her return her refund to me, is that correct? In the meantime, how do I go about filing?

Thanks in advance.

Legally, you cannot file a joint return with her if she doesn't agree to do so. No matter what the court ordered, you would be in a world of hurt under federal law if you attempted to file a joint return without her permission.....and federal law trumps state law.
Therefore even if you could somehow access her W2s, you simply cannot do that.

However, you do have remedies under your divorce decree, and yes you could take her to court for contempt. However a judge wouldn't necessarily order her to turn over HER refund, but more likely the difference that would have resulted on a joint return...IF a joint return would have produced a refund.

However, I am assuming that since your divorce was final right after the first of the year, that you were separated for more than the last six months of the year, which means that each of you would be entitled to file as unmarried. Therefore, depending on the overall situation, its not guaranteed that filing jointly would produce a better result for you than filing separately. (of course if you have children and she is going to be claiming them that's a significant factor).

So, run some numbers before you make assumptions. If she has been regularly working you can use last year's numbers for her to help you estimate things. Make sure that it would really hurt you to file a separate return rather than a joint one....or that it would hurt you enough to make a trip to court worthwhile.

 

[StepChylde]

Here is the entire clause:

"The parties agree that the husband will receive any tax refund or pay any tax liability which the parties may be entitled to or have imposed for the 2006 tax year"

In other words, the ENTIRE tax refund due either of us is mine. Would a judge still allow her to keep hers? I would assume he would force her to comply with the decree and return it to me. Am I wrong on this? This is my main question.

I should add that we mutually agreed to ALL of the settlement, and used my company lawyer to draw up the documents. She did consult with her lawyer, but nothing was contested.

Also, we were not seperated for more than 6 months, the divorce decree lists Oct as the seperation date but in fact she did not leave until the first of Dec. Both children, a son which I can claim and a step-daughter she can claim, resided here until late Dec as well.

That leaves us with married filing seperate, or married filing jointly. Also, I will be itemizing, forcing her to do the same and significantly lowering her refund if she files seperate.

But wait....there is more. She is also convinced that she can claim that she lived with her parents for 6 months, produce bogus 'rent' reciepts, and file HoH for the year. This is due to the fact that she had her mail changed to her mothers address in August. Her mothers tax man told her that. No amount of discussion from me and even links to tax laws will convince her otherwise.

 

[mjcrules]

One other problem is if she files first as married sep and doesnt itemize, you're (at least temporarily) behind the eight ball. If the kids rec'd report cards at your address, I dont see how she would conclude HOH filing status at another address. If you want to slam back, ask your CPA about common law income....just make sure you notify the soon to be ex about any income you might allocate to/from the ex. You might also want to file the form for lInnocent Spouse relief for some insurance. The filing of the form could cause a closer look from the IRS however. GL

 

[LdiJ]

It would be really unusual for you to have filed for divorce in october and have it already finalized by early January, at least in Indiana. When did you actually file for divorce, and what was the exact date that it became final? When did the judge sign the decree?

She can prove that she was receiving mail at her parent's address, what proof can you provide that she was living at your address?

I agree that if what you are saying is true, that your choices are married filing separately or married filing jointly. However, if by any chance the judge signed the decree prior to January 1, that changes things. If the decree was signed prior to January 1, then you are not permitted to file a joint return.

And no...a judge can't make her turn over her entire refund to you. What the judge can do is make her give you whatever is necessary to produce the same result that you would have received filing jointly.

If you would have received a 2k refund, but had to pay 500 because you couldn't file a joint return....and she got a 4k refund....the judge is likely to make her give you 2500.00 to make you whole, not turn over the entire 4k refund to you.

 

[StepChylde]

Thanks for the replies all.

In Indiana there is simply a 60 day grace period. We filed in November, it was signed by the judge Jan. 9th. October was listed as the seperation (no longer living together as man and wife) because that is when we started the paperwork.

The children finished the school semester here, the other address/school is 60ish miles away. As for proof of her living here, I'm not sure what I would need actually. I can produce several e-mails (from between oct and dec) where her December move out was discussed in length. Even with her mail change in August, that doesn't meet the 6-months required to file HoH tho.

I'm still confused as to how you conclude that she would be allowed to go ahead and keep her refund. The decree states that we both agree I would get it, as a division of 'marital assets'. Basically, I am keeping more of the debt, and recieving the full return (any due EITHER parties) as a way to offset the difference.

Okay, I think the lightbulb just went on. I can only get what I would have recieved with a joint return, not MORE. Let's look at it all ways, let me know if I got it right now:

Joint nets 4k
Seperate she gets 2k, I get 2k. Judge makes her give me 2k. She keeps zero.

Joint nets 4k.
Seperate she gets 3k, I get 2k. Judges makes her give me 2k. She keeps 1k.

Joint nets 4k.
Seperate she gets 1k, I get 2k. Judge makes her give me 2k. She is minus 1k.


BTW, if that is the case I am all for her getting as much money as she can, as long as I am not 'penalized' by her filing seperate. If I still get the 4k, and she ends up 1k ahead, then I am all for it. I am not looking to 'get all I can', just what we both had mutually agreed was a fair division of assets/debt.

 

[mjcrules]

I commend your attitude, just be aware not everyone thinks as you do and some can be excellent thesbians when warranted. Why not sit down over an adult beverage and lay it on the line...maybe this can work for both of us....lets explore all the options together before we go off and file as we each see fit and end up with a marital liability and/or tax lien as a result. Even the opposite sex can be reasonable occasionally.

 

[StepChylde]

Good advice mjcrules. I've actually tried that on this matter, several times in fact. I've even suggested that she give me a rough idea of what her withheld tax is so we can estimate what her actualy refund will be. I've told her I don't see any point in arguing over something if we don't yet know if it's worth the fight. Her response is always yelling and screaming and a general short term loss of sanity.

FWIW, her refund should be around 2k or so, as will mine. It's not alot, but it will be used to make repairs to my house (which I owned before the marriage) to make it marketable to sell. It is the reason we set it up this way in the begining. Problem is she has a new BF in her ear now, convincing her she is entitled to every cent she can squeeze.

 

[Bali Hai]

Good advice mjcrules. I've actually tried that on this matter, several times in fact. I've even suggested that she give me a rough idea of what her withheld tax is so we can estimate what her actualy refund will be. I've told her I don't see any point in arguing over something if we don't yet know if it's worth the fight. Her response is always yelling and screaming and a general short term loss of sanity.

FWIW, her refund should be around 2k or so, as will mine. It's not alot, but it will be used to make repairs to my house (which I owned before the marriage) to make it marketable to sell. It is the reason we set it up this way in the begining. Problem is she has a new BF in her ear now, convincing her she is entitled to every cent she can squeeze.

Then your only recourse is to take her to court for contempt if she doesn't pay over every cent of her refund to you per the decree:

"The parties agree that the husband will receive any tax refund or pay any tax liability which the parties may be entitled to or have imposed for the 2006 tax year"

 

[LdiJ]

Then your only recourse is to take her to court for contempt if she doesn't pay over every cent of her refund to you per the decree:

"The parties agree that the husband will receive any tax refund or pay any tax liability which the parties may be entitled to or have imposed for the 2006 tax year"

And that would be wrong since the decree also indicates that they are to file a joint return...therefore the refund or balance due would be in reference to a joint return.

 

[StepChylde]

Actually, the decree doesn't specify that we file joint or seperate. That is part of the ex-wifes logic..."It doesn't say I have to file WITH you, so therefore I can just file by myself and keep it all".

My position with her is that it doesn't matter if we file joint or seperate.....I get the refund/s either way.

 

[LdiJ]

Actually, the decree doesn't specify that we file joint or seperate. That is part of the ex-wifes logic..."It doesn't say I have to file WITH you, so therefore I can just file by myself and keep it all".

My position with her is that it doesn't matter if we file joint or seperate.....I get the refund/s either way.

I doubt that a judge would see it that way. The intent of the order was obviously that you would file a joint return, and that you would receive the refund or pay the balance due.

As I told you in my first response, make sure of what you are fighting over before you spend alot of money taking this to court. Run some numbers and see what you are looking at.

 

[Ohiogal]

I doubt that a judge would see it that way. The intent of the order was obviously that you would file a joint return, and that you would receive the refund or pay the balance due.

As I told you in my first response, make sure of what you are fighting over before you spend alot of money taking this to court. Run some numbers and see what you are looking at.

Actually you can't state that that was the intent. If that was the intent it should have been specified in the court order. You are reading into the order that which is no where present.

 

[LdiJ]

Actually you can't state that that was the intent. If that was the intent it should have been specified in the court order. You are reading into the order that which is no where present.

I may be. However, we don't have the entire order to read, and its very possible that that sentence has a meaning in a "context".

In any case, the state court judge doesn't have the authority to give her refund to him....that is basically seizing or placing a lien on a tax refund, and that can only be done in very limited and controlled circumstances under federal law.

Again, I would urge him to be certain of the total economics of the situation before pressing any further with this.

 

[StepChylde]

I agree about making sure it is worth it, and have pointed out the same to the ex on numerous occasions.

She has expressed her intent to file seperately (probably HoH) and keep the refund. This isn't a lack of understanding on the intent of the decree btw. We both discussed, in length, that I was to recieve the entire refund to use towards the house. She simply completly changed her mind and seems to think she can follow the decree at her discretion. Money aside, I would rather not 'set precedent' that I will allow her to do just that. I am just finding out my options so that I will be prepared. If I make a stand on this matter, I just want to be assured that I am doing so on solid ground.

I would assume since we were married the entire year that it wouldn't technically be considered HER refund, but OUR refund since it is considered a marital asset. It is something that we, as a married couple, paid into during our marriage.

Again, I am not looking to try to screw her financially. I took the bulk of the debt, and will lose my house as a result. I have also already helped her out financially in getting her apartment and even paying her car payment.

Thanks for the input all, it is greatly appreciated.


BTW, the sentence I quoted is also the entire paragraph in reference to our 2006 tax return. Nothing more is mentioned of it in the decree, other than the even/odd year agreement on claiming our son.