Have to share tax return??

iVillage Member
Registered: 11-13-2005
Have to share tax return??
4
Sat, 02-18-2006 - 11:11am

Morning...

I hope there are some bright mornings for everyone out there! The weather here is cool and gorgeous, my heart wants to feel the freedom this day (even though its not really here yet)...so I am going with the feeling, lol!

Somehow along the way, our divorce was tagged to the custody battle (Calif.) --- and the continuances and delays continue, now a year and two months later. Each time his lawyer gets another 90 days it seems. Anyhow I am working on figuring out how to file my taxes on my own. Last year stbx filed the paperwork jointly, asked me to sign 'for simplicity's sake' and then he gave me half of the state refund but not a penny of the entire federal one. I made the court aware of it in one of our hearings, but the judge didn't address it or anything.

What I want to know is (and no I still don't have a lawyer yet); when I file, whatever refund I get, do I 'have' to share/split it with him since we are still legally married, but have lived separately since January of 2005? I need to use the money for basic living expenses, ie rent to make it through til the next court hearing...stbx is nearing the over $5,000.00 point in child support arrearage. We cannot communicate; he still thinks he owns the universe, and aside from deigning to tell me what to do every now and then in an email, there is no communication. That is basically more healthy for me, but of course he still tries to 'tell' me what I 'have' to do, or puts things in writing in the emails that are made up or twisted, just so he can have a paper trail I guess. He hates it that I do not tell him about 'what I'm doing with my life' --- he has taken to referring to 'your existence is cloaked in secrecy' or 'your secret life' - heh. Much of it is couched as if it is related to the children, but that is a crock, its just ways he thinks up to be able to try to create conflict, and he absolutely detests that I rarely engage in it anymore.

But I am worried if I use the tax return money up over the next couple of months on the rent,etc --- when the divorce is finalized, I am assuming the judge will allocate whatever expenses that are outstanding (ie the court fees, lawyer fees, kids dental bills) to both of us in some manner. I do not want to do anything illegal or be told that I have to recoup half of the return back to ex later as I don't have any savings to be able to do that. I am not sure why I am bothering to worry about it -- I don't have a lot of choice anyhow. If I get, whatever refund I am able to get, I have to use it to keep a roof over our heads, so what choice really is there...not like I can just take half and put it in savings for another year until sometime in the magical future the custody fight and the divorce are finally done. I know there will be an end, but often, it doesn't seem like it...

K, that is all my worrying for the day! I will get rowdy with the kiddo's, fix a bookcase that needs some repair, listen to 80's rock loudly this morning and cook some great food this weekend! Hugs to everyone dealing with pain and hard things in this divorce path...Peace, Annah

Avatar for eatatmoms
iVillage Member
Registered: 03-26-2003
Sat, 02-18-2006 - 12:42pm

Just sending a hug your way Annah! I think of you and your family often and I hope all is well.

Melanie

iVillage Member
Registered: 01-10-2006
Sat, 02-18-2006 - 5:35pm

Hello there. I'm a tax consultant at the H&R office in town and thought I'd send a quick note about this. You don't have to file with the STBX unless you want to. Since you've been separated most of the year, you can file Head of Household since you do have the kids. He'd have to file Married filing separately and that doesn't have as nice a refund as HH does. If you do file HH you do get the child tax credit and EIC with that. IRS considers the custodial parent to have the right to claim the kids UNLESS there is a divorce/custodial decree stating otherwise OR an 8332 filled out by you giving him permission to use the kids. Do you know if he's already filed?

As to what the judge would do: if they haven't told you to file together than it's up to the two of you to decide. Personally I'd file HH and let him fend for himself since he owes the back support. I'd also suggest seeing what paperwork has to be filed in order for the federal and state to take his refund to help pay for back support. I'm not sure how they do it now but several years ago when we were doing that we were required to fill out the paperwork before they'd even do it. That wouldn't work for this year, but it should if he were to file taxes next year. Talk to the local child support office about it.

Hope that helps!

iVillage Member
Registered: 11-13-2005
Sat, 02-18-2006 - 10:11pm

Thanks for the encouragement Cupcake! Sweetandsassy - I appreciate the information, thanks a lot.

The kids were with me 84%/him 16% for five months of the year, then we went to near 50-50 (literally 51% me/49% him for about six and a-half months or so). So that means I had physical custody of them for more than half time for the past year. The temporary child support order calculations refer to me, "the mother", as the custodial parent with 51% and; and at any rate they were definitely with me for more of an amount of time than him for the calendar year.

No I did not sign the 8332 exemption form for him to be allowed to claim the children as his dependents this year; so he doesn't have that; and I am not going to willingly accept that as part of the final divorce decree either; am asking for alternating years. I know sometimes the parent who makes the most income gets the child deductions, but I am going to at least try to get them on alternate years. His dance with the whole CS thing has proven the sort of mess we will be dealing with in the future regarding financial support from him, so it would be beneficial for the children and I to either pay less taxes/or get a bit of a refund every other year at least.

I did call the Child Support Department two weeks ago to reconfirm the amount he is behind and ask if he had any checks now in the system. I was told by my case worker that since he is behind on the cs that information had already been forwarded to the IRS which would put a stop on his refund and redirect it to their office. I asked whether I would get that toward the cs I am supposed to be receiving and she seemed not entirely certain but 'thought' so.

I am trying to figure out how to do my form and will get it filed. I have no way of knowing if he has already. On the one hand, I would not be surprised if his family didn't help him to file on Jan 3, lol; but if his idea is to try to prevent me from having cs or any funds that will help pay the rent, and thereby my getting evicted and having to take the children to him, then I guess he will wait and file April 14th or even request an 'extension' or something along those lines. I also think he will try with his expensive law firm, to send in paperwork to 'prove' he is somehow the custodial parent, but I will trust the documents I have and the new 'rules' governing separated parents will suffice to cover the situation. If I dwell on it too much I will just start my worrying spiral again.

I will just go forward best I can. I know this isn't objective, but I always 'feel' like no matter how I research and try to find information, in this process there is just so little 'known' or provable information...everything seems dependent on something else, and all I really care about is the children having as much of both of us as is possible, and my getting healthy again in my head and heart.

His control still echoes through me and I have to make a conscious effort to believe instead in myself and the present, not the toxic history I still remember with him. Notwithstanding the interaction and communication needed to co-parent, I want literally as little as possible to do with him or his family for the rest of my existence on this earth.

iVillage Member
Registered: 01-10-2006
Sat, 02-18-2006 - 11:22pm

Well if he were to have filed, you'd be able to mail in your return to challenge it. The IRS would send you the check while they figure out who was supposed to get the kids. Their tiebreaker rules go something like this. 1)who is the custodial parent, then 2)who has them the most days of the year and then 3)who makes the most money.

Once note of something that might help. IF he did claim them in alternating years and got them for child tax credit and as a dependent, you could still claim them for EIC and head of household. The IRS does allow that. The noncustodial parent can get the dependent and CTC, but they don't get HH status OR EIC. The custodial parent can do that in the years that the other is claiming them. That would help get you a nice return too. :)

As for him getting the lawyers to say that he may be the custodial parent, you can counteract that with a note from the school and/or landlord stating that the children do live with you. My sister had to do that when her ex claimed the kids.

Hope that helps. :)