Spouse's 401K Early withdrawals when separated, filing separately

[Monaliza69]

My soon-to-be ex and I did not live together in 2019. Ex filed divorce papers in July 2019. I found out ex filed their taxes already and he did not claim the 2019 early disbursements he got from his 401K. Can I be held liable if he gets audited and/or charged with tax evasion? We were technically still married through 2019.

[Opus 17]

1. If you are married filing separately, you are not liable for your spouse’s accidental or deliberate mistakes.  
2.  You probably have legal rights to at least part of your ex’s retirement accounts and he should not be making any withdrawals without the approval of you and your attorney.  Make sure your attorney knows about this situation.  

[Monaliza69]

Thank you for the rapid response! Thank you for the additional concern and information.  He is denying he did this.  He also filed as single and claimed our daughter without asking me, and without getting the proper and required form 8662 signed by me.  He denies all of this, of course.  He got his stimulus check very quickly after filing in March, but since he filed as single for 2019, looks like I won't get one.  We always filed jointly before. I cannot get an answer from the IRS about the stimulus, whether I'm going to get one based on 2018 filing or not.  I do not have enough proper income to qualify with my 2019 tax return because I have to file separately this year, and that is why I've waited to file, hoping I would get a stimulus check based on 2018.  He's a real doll. 

[Opus 17]

The only way to possibly force an IRS investigation that might result in him having to correct his tax return is for you to file correctly and claim your legitimate dependent.  (You won't be able to e-file.)  The information we have now is that the stimulus payment will be recalculated on your 2020 tax return so that's another opportunity.  I would not wait to file, you have nothing to gain at this point.  If you have attorneys involved in the separation, they can send a court order to the retirement plan trustee to require them to provide you with an account statement. (your attorneys can also likely freeze his accounts if he has been moving or hiding money)