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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 37960
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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Not sure if you are the correct specialist question....but

Customer Question

Not sure if you are the correct specialist for the question....but I am waiting on a judgement on my divorce after a 3 1/2 year case with custody of my 3 minor children of 13, 11 and 8 yo. As she has been required to have supervision during her alternate weekends for most of the last 2 years (I have had temporary full custody) and the GAL and court appointed psychologist's testimonies were extremely incriminating for her, I strongly believe the court will lean favorably in my direction.
With that said, my soon to be ex-wife is somewhat in a panic about her lack of benefits. As we filed jointly on the 2014 tax returns, she now is threatening to file individually, an amended return if I don't keep her on my employer insurance after the divorce (which I believe would be fraud as she will no longer be my dependent). She only made $6,000 last year PLUS the $12,000 I paid ($1000 a month ordered in a PDL, a temporary order until the divorce and custody are final)l. We mutually benefited from filing jointly as she had not had any deductions what so ever taken out of her checks and that did not take into account the $12,000 that I paid her. She would have had to pay over $1000 and I would have had to pay $6000 in income taxes if we had filed individually......
My question is:
1. Can she do what she is threatening, by filing an amended return as an individual which would effect my filing
2. Since we were not divorced yet, would her spousal support need to be reported and taxable if she were to have filed as individual? She seems to think it is not since it was a temporary order and we were not divorced. I think what she is suggesting is extortion.
Your opinion?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 1 year ago.

Hello again...you asked:

1. Can she do what she is threatening, by filing an amended return as an individual which would effect my filing

A: A tax return may be amended as to status within three years of the date that the return was originally due. However, after two years, the amount of refund that may be claimed is limited by the amount of tax previously paid. So, if your ex's goal is to inflict punishment on you, it's possible for her to do so. And, you could ask the court to credit you with the amount of additional tax imposed, on grounds that your spouse is intentionally impairing the marital assets.

The judge would be highly likely to rule in your favor.

2. Since we were not divorced yet, would her spousal support need to be reported and taxable if she were to have filed as individual?

A: 26 C.F.R. 1.71-(1)(b)(3) provides that a temporary order, under IRC 71(b)(2)(C), is sufficient to create an award for alimony. Consequently, if your spouse files as an individual, she will be taxed on her receipt of alimony payments.

She seems to think it is not since it was a temporary order and we were not divorced. I think what she is suggesting is extortion.

Your opinion?

A: Extortion, perhaps, but you'll never get the DA to charge your spouse with the crime. If that were to happen, 90% of the divorcing parties in the state would be pounding on the DA's door looking for "justice." As the old saying goes, "Hell hath no fury...etc."

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

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