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When a couple marry during mid year without a premarital…

Customer Question
When a couple marry...

When a couple marry during mid year without a premarital agreement I understand that the income earned before marriage is separate property, however what about that same property after marriage - does it remains separate property or does it automatically become community property? This is in reference to filing a tax return in California.

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state this is in?

California

Lawyer's Assistant: Has any paperwork been filed?

We are in the process of filing a California income tax return

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Only that the new wife has a student loan going back to 1989 and the IRS is taking the entire refund from the couple's joint 2016 income tax return . We are filing Form 8379 but I don't know what the allocation of income between separate and community property should be.

Submitted: 6 months ago.Category: Real Estate Law
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Answered in 2 minutes by:
12/5/2017
Real Estate Lawyer: Ray, Lawyer replied 6 months ago
Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 47,598
Experience: Texas Attorney for 30 years dealing in real estate
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

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Real Estate Lawyer: Ray, Lawyer replied 6 months ago

You should be able to claim at least some of the refund as innocent spouse.Income after marriage is community.You would be due a refund here of premarital income and post marital for your share.You should file an innocent spouse claim with IRS.

Reference

https://www.irs.gov/publications/p971

How To Request Relief

File Form 8857 to ask the IRS for the types of relief discussed in this publication. If you are requesting relief for more than six tax years, you must file an additional Form 8857.

The IRS will review your Form 8857 and let you know if you qualify.

A completed Form 8857 is shown later.

When To File Form 8857

You should file Form 8857 as soon as you become aware of a tax liability for which you believe only your spouse or former spouse should be held responsible. The following are some of the ways you may become aware of such a liability.

  • The IRS is examining your tax return and proposing to increase your tax liability.

  • The IRS sends you a notice.

You must file Form 8857 no later than two years after the date on which the IRS first attempted to collect the tax from you. (But see the exceptions below for different filing deadlines that apply.) For this reason, do not delay filing because you do not have all the documentation.

Collection activities that may start the 2-year period are:

  • The IRS offset your income tax refund against an amount you owed on a joint return for another year and the IRS informed you about your right to file Form 8857.

  • The filing of a claim by the IRS in a court proceeding in which you were a party or the filing of a claim in a proceeding that involves your property. This includes the filing of a proof of claim in a bankruptcy proceeding.

  • The filing of a suit by the United States against you to collect the joint liability.

  • The issuance of a section 6330 notice, which notifies you of the IRS' intent to levy and your right to a collection due process (CDP) hearing. The IRS usually sends a section 6330 notice by issuing a Letter 11 or Letter 1058.

Exception for equitable relief.

The amount of time to request equitable relief depends on whether you are seeking relief from a balance due, seeking a credit or refund, or both.

I appreciate the chance to help you today.Thanks again.

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