I've been separated from my ex since Sept 2015. I have the information I need to file our taxes jointly. Do I need her explicit consent to do so? Are we equally liable?

[terance_b]

I've been separated from my ex since Sept 2015. We're still not technically divorced and no taxes were filed for 2015 or 2016. I have the information I need to file our taxes jointly, but do I need her explicit consent to do so? There is no current order stating how we should file. If I do file, I understand I'd need to provide her with half of the return. If there is something missing or unreported with the taxes on her side, who becomes liable? Are we equally liable?

[DanielV01 · Accepted solution]

By tax law, you need her consent, and by IRS law, you are joint and severally liable for the tax return when you do file jointly.  You may legally file a joint return if you are physically, but not legally separated.  However, by law, she must sign the return or the electronic filing form (8879).  

Joint and severally means that you both are responsible as a team, and that the IRS can also hold you responsible for delinquencies and underpayments individually.  

So, yes, if you wish to file a joint return you will want to contact her and make sure that all of her income is also reported so that is accurate and you can be assured that she will sign the return as well.

[terance_b]

Thanks for the response... when I've filed electronically in the past, there was just an electronic verification or signature.. didn't require her to sign even when filing jointly.  Is there a change or is it different because we're physically separated?

[DanielV01]

One of the difficulties of e-filing is that it is not difficult for someone else can e-sign.  Still, the law says that you get a form that prints out that you each must physically sign for your records, and the IRS can ask for it.  If you were to submit the return without permission, and then your spouse claims tax fraud, the IRS will be looking for the form from you as proof that she's signed.  Needless to say that can lead to big issues, as it goes against the law.