Filing status question

[ShelQuat]

My husband and I are getting divorced. I filed an extension for our 2020 taxes. I just found out he has been way underpayment his taxes by filing married with 8 exemptions. Can I file my 2020 as married filing separately so I can get my refund? I claim single with zero. Thanks.

[Mike9241]

since you were married at the end of 2020 you can use the MFS status. another option is to file jointly and use the injured spouse allocation form 8379. if you paid more than 1/2 the cost of keeping up a home for yourself and your child(ren) or stepchild(ren) or foster child(ren) any one of which you can claim as a dependent and who lived with you for more than 6 months in 2020 and you and your spouse lived apart for the last 6 months in 2020 the head of household filing status would be available.  the thing with MFS is that if your spouse filed first, you must use the same method for personal deductions - either the standard deduction or itemized deductions that your spouse used.   you may want to consult a tax pro to go over your options. MFS is usually the most costly from a tax standpoint. 

[Opus 17]

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@Mike9241 wrote:

since you were married at the end of 2020 you can use the MFS status. another option is to file jointly and use the injured spouse allocation form 8379. if you paid more than 1/2 the cost of keeping up a home for yourself and your child(ren) or stepchild(ren) or foster child(ren) any one of which you can claim as a dependent and who lived with you for more than 6 months in 2020 and you and your spouse lived apart for the last 6 months in 2020 the head of household filing status would be available.  the thing with MFS is that if your spouse filed first, you must use the same method for personal deductions - either the standard deduction or itemized deductions that your spouse used.   you may want to consult a tax pro to go over your options. MFS is usually the most costly from a tax standpoint. 

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Form 8379 is not allowed in this situation. 

Form 8379 injured spouse relief is used when a spouse wants to protect their share of their tax refund from the debts a spouse incurred prior to the marriage.  Form 8857 innocent spouse relief is used when an ex-spouse wants protection from their former spouse's tax debts incurred during the marriage, and can only be filed after the divorce.  For shenanigans that happen during the marriage, MFS is the only recourse to protect yourself. 

Spouses always have a choice to file jointly or separately.  Be aware that if you sign a joint return, you are agreeing to be jointly and equally liable for everything on that tax return, including tax owed.  You are also certifying that the tax return is true and accurate and you are accepting equal and joint responsibility for any misstatements, fraud or other problems.

Since you were legally married on Dec 31, 2020, your only legal choice to separate yourself financially from any tax shenanigans your spouse might have done is to file as married filing separately.  (Or to file as head of household if you were living apart from your spouse for all the second half of 2020, and you paid more than half the cost of maintaining your household, and you provided care in that home for a qualifying person, usually your child dependent.)

[DoninGA]

IRS Form 4868 and instructions - https://www.irs.gov/pub/irs-pdf/f4868.pdf

If you and your spouse jointly file Form 4868 but later file separate returns for 2020, you can enter the total amount paid with Form 4868 on either of your separate returns. Or you and your spouse can divide the payment in any agreed amounts.