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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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our ca divorce was final on dec 14, 2011. In it, it states

Resolved Question:

our ca divorce was final on dec 14, 2011. In it, it states that we are to file taxes jointly for 2011, provided my ex-husb fully cooperates with all paperwork signings, by march 31, 2012. etc. However, I have now learned that we cannot file as married filing jointly, due to not being married on dec 31, 2011. What should I do? I would prefer to file seperately, as he makes a lot of money.
Submitted: 2 years ago.
Category: Family Law
Expert:  AlexiaEsq. replied 2 years ago.

AlexiaEsq. :

*Due to rules of your state bar or mine, nothing herein is intended as legal advice, only intended as general information to better help yourself.

AlexiaEsq. :

Can you tell me WHO drafted the decree?

Customer:

my atty.

Customer:

are you still there?

Customer:

is this working? If not, I am going to cancel the charge to my card. I am beginning to wonder if this is legit. ??

Expert:  AlexiaEsq. replied 2 years ago.
That chat box seems to not be working? In any event, I switched us to Q&A mode. Can you see this?
Customer: replied 2 years ago.
yes
Customer: replied 2 years ago.
I am sorry, but I am getting uncomfortable with this process. Maybe it is not working, and I am getting worried that I will be charged for something I am not receiving. I will now cancel my charge. please understand.
Expert:  AlexiaEsq. replied 2 years ago.
OK, it is a bit disturbing that your attorney drafted this term, since it would not be permitted, but perhaps he did not expect the divorce to go through until after January 1. In any event, a divorce agreement incorporated into a decree, that has an invalid term, will not make the term enforceable. It is an 'impossible' term, and so you would typically not be held reponsible for having it done. For that reason, as I see it, you not only are free to file separately, but you must file separately.

If this means the ex loses out, and it is not equitable due to a prior assumption of joint filing having effected (increased) any "take" that you had in 2011 - it is possible that he could file a Motion to correct the term that was to your benefit and resulted because of the presumed joint filing. If the Judge believes that you received X because you all agreed to joint filing as well, and the joint filing can not occur, he could make an order to make the situation "fair" again. However, if there was no such give and take effected by the filing status, he may not be so inclinded.

I hope this helps clarify for you.

Because I help people like you here, for a living---this is not a hobby for me---I sincerely XXXXX XXXXX abiding by the honor system with regard to Accepting answers, by Clicking your ACCEPT button now. Feel free to follow up after, if you need clarification. An ACCEPT also assures that I can assist you again. A BONUS is a wonderful way to tell the expert her time and effort are appreciated. I wish you the best in your future.
Customer: replied 2 years ago.
ok, I will pay for this, and I apologize for panicking about the legitimacy of this site.

Can I further clarify?
My ex was pretending to have medical reasons for not returning to his still open job as an overseas military contractor. I agreed to no spousal support, and instead just got the property division and a small lump sum in lieu. As soon as he signed the agreement in oct. 2011, he went overseas and started working. I had no control over whether or not he claimed taxes to be taken out (in the past, he has not had much taken out as he got the foreign earned income credit).. so he worked Nov & Dec, over there, and was prev. making $27k per month. I only make $35k per year. I have two kids from prev marriage, and the home is in my name (prev to 6 year marriage), and he quitclaimed his title over to me already. He of course wants the deductions. since he lived in the home until june of 2011, I agreed to give him one half of the int & re tax deduc, through that time, and this was what we requested. He in turn wanted to file jointly, and in order to finally get him to cooperate, I said yes, but the stipulation is that if he doesn't cooperate by march 31, than I get to file seperately. The wording is that we would file jointly, & he resp. for 2/3 of any proceeds or liab, and me 1/3. Maybe it is just talking about us filing together (i.e. both as head of household) ?? Thank you for any further reassurance you can give me. My atty was soooo expensive, and I didn't get as much as I would have liked.
Expert:  AlexiaEsq. replied 2 years ago.
Hi, lol, just saw your concerns. Not to worry, I understand, if you are new to the site and service, like any other internet venture, it is wise to be wary. I, on the other hand, have been here since 2008 (I can not believe how time has flown).

With regard to your post:

ok, I will pay for this, and I apologize for panicking about the legitimacy of this site.

Can I further clarify? Of course!
My ex was pretending to have medical reasons for not returning to his still open job as an overseas military contractor. I agreed to no spousal support, and instead just got the property division and a small lump sum in lieu. Ww you married long? Kids?

As soon as he signed the agreement in oct. 2011, he went overseas and started working. I had no control over whether or not he claimed taxes to be taken out (in the past, he has not had much taken out as he got the foreign earned income credit).. so he worked Nov & Dec, over there, and was prev. making $27k per month. I only make $35k per year. I have two kids from prev marriage, and the home is in my name (prev to 6 year marriage OK, relatively short marriage, but not the shortest, and no kids)

), and he quitclaimed his title over to me already. OK, so he DID own the home with you, because you'd redeeded it to him at some point after you were married?

He of course wants the deductions. since he lived in the home until june of 2011, I agreed to give him one half of the int & re tax deduc, through that time, and this was what we requested. He in turn wanted to file jointly, and in order to finally get him to cooperate, I said yes, but the stipulation is that if he doesn't cooperate by march 31, than I get to file seperately. The wording is that we would file jointly, & he resp. for 2/3 of any proceeds or liab, and me 1/3. 1/3 could be quite a chunk, is that doable on your income?

Maybe it is just talking about us filing together (i.e. both as head of household) ?? Thank you for any further reassurance you can give me. My atty was soooo expensive, and I didn't get as much as I would have liked.
Since your attorney apparently may have committed a boo boo here, what about considering speaking to him about fixing this error at no extra charge - if this comes and bites you later. I mean, you literally CAN'T file jointly, it is not any 'contempt' on your part, if the law prohibits it. So filing separately is the only way. And while your ex gave you the house that he likely didn't have to give you, you ALSO settled on the spousal support very generously in favor of him - or so I'd argue. There are no guarantees how a judge would rule, you can only fight it if it happens that our ex seeks compensation. But he can not, in my opinion, hold you in contempt for not filing jointly, since that is not your choice and nor can HE file jointly. Moreover, the vast difference in pay/income could further work in your favor, if he is making $27k a month, almost a years work for you to accomplish.

AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11713
Experience: 19+ Years of Legal Practice in Family law matters.
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