Good afternoon Me and my husband live in a community property state,He is the only person that works so he is the bread winner,I owe student loans which are in collections so last year they garnished our refund all of it..So I was wondering if my husband could do taxes this year filing separate and claim our 3 boys and if so will they still garnish it even if I am not on the refund? Thank you
You can file jointly and he can protect his share of the refund by filing an injured spouse form. Since you are in a community property state, half of his income will be attributed to you whether you file jointly or separately.
Before you file the 8379, you need to determine if your husband is actually an "injured spouse". An injured spouse is someone who is being held accountable financially for actions made by the other spouse before the couple was married.
So IF you incurred the school debt before you were married, your husband was no part of it and shouldn't be held liable for it; however, note that this is not strictly true for community property states. In your case, your husband's portion of your joint refund will still be subject to some garnishment, depending on the specific rules of Texas (the rules vary somewhat for each community property state). See form 8379 as noted above.
But if you incurred the school debt AFTER you were married, then your husband is responsible for his portion of the debt in any case, and filing the 8379 would not be appropriate.
When you file MFS (Married Filing Separate), you lose access to several important tax credits. For example, you would both be unable to claim:
- Earned Income Credit
- American Opportunity Credit
- Lifetime Learning Credit
In addition, the Child Tax credit and the Child and Dependent credit would be limited for your husband to only half of what you would get filing joint.
To know which way would be the best, you would need to do your return both ways (separate and again joint) to see which way gives you the best result.
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