married filing separately during divorce in California

[johnrhyde]

I am in the middle of a nasty divorce and my ex won't provide me with tax documents unless I agree to file jointly.  I don't want to file jointly because they have underwitheld and want me to pay their tax bill.  How do I fill out form 8958 when I filed for divorce January 31 so have 1 month on "community" income and 11 months of "separate" income.  I have a couple of their paystubs so can guess at their income during that month but they refuse to share a W2 and other paystubs.  We also have a jointly owned rental property and they won't provide me with receipts for repairs though I have most of the other information.  How do you file taxes when someone withholds information from you?

[RobertB4444]

You don't mention any dependents so I mention this only as an option - if you didn't live with your spouse for more than the last 6 months of the year and you paid more than half of the cost of keeping up your home during the year and your home was the main home of your dependent child during that time you are eligible to file as head-of-household for the year.

If you are filling out form 8958 in a community property state then half of your ex's tax bill would fall to you anyway.  Everything is evenly divided on form 8958.  However, if you feel like you did not benefit from an item of community property then you can disregard it (ie. leave it off of your return).  Go here to look at IRS publication 555 and click on the section marked "Community Property Laws Disregarded".

Lastly, if you can't get your ex's social security number in order to file a married-filing-separate return then you will have to paper file the tax return.  Enter all the information that you have for your ex and then write "UNAVAILABLE" where the social security number goes.

The second that your divorce is final you file as single so as long as it is final before December 31st of this year then you will not have this problem for next year.

@johnrhyde 

[johnrhyde]

Thanks.  We have 2 dependents. I have suggested we both file as HOH since we have been living separate for over 6 months of the year and share 50:50 custody so can each claim a child as a dependent. She disagrees and says only 1 of us can claim HOH and it should be her.  I am the higher wage earner and thus the custodial parent in a 50:50 situation.  Since we are considered separated for income purposes once I filed for divorce on Jan 31, I only need to consider 1 month for community income in California. It's not clear how to put this on form 8938 when I don't have her full year of income but I can guess.  We also have a jointly owned rental but she won't share all of the expenses with me unless I agree to file jointly and while I can guess I would prefer to have to actual expenses to put on my separate return

[DawnC]

You both can't claim Head of Household if you live in the same house.   But if you have separate homes and each have a dependent, you both could be Head of Household.   @johnrhyde 

[johnrhyde]

Yes, thanks. We live in separate homes, she was removed after being arrested for domestic violence but insists on exerting control over my and the kids lives.  She refuses to share tax documents and income/expenses for our shared rental with me unless I file jointly with her.  She has been underwitholding so wants to file jointly so that I will cover her tax obligations

[DianeW777]

You are not required to file jointly.  If you do, you can never change your mind after April 15th. 

• Separate returns after joint return. After the due date of your return, you and your spouse can’t file separate returns if you previously filed a joint return.  IRS Publication 504

The key is where the children reside. Only the custodial parent would be eligible for Head of Household filing status.  Review the information in the link below because there are slightly different rules for a married couple living apart and filing separate returns.

• Can a married person claim Head of Household filing status? 

When you review consider medical records, school records or any other evidence the child or children actually live with you, using your address.

@johnrhyde