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JFrustratedHusband
Returning Member

Living separate, but not yet divorced or legally separated

My wife and I have been living separate for 2.5 years now, but at this time we are not legally separated, although we are going through the divorce process.

 

At this time, she is refusing to co-operate so I can file my taxes, as I still need to know her AGI and how many deductions she claimed. Through the divorce process so far, I do have access to a copy of her W-2 form, and it appears that although we made similar wages last year, she has a lot more tax taken out than I did, so I am thinking she may have filed as single. as opposed to married filing separately, as I am trying to do. What are my options at this time?

9 Replies
VolvoGirl
Level 15

Living separate, but not yet divorced or legally separated

If you are just looking at a W2 that doesn't have to match the status you actually file on your tax return.  I'm married but claim Single at work.  You can't worry about how she files.  Just file your return right. If the IRS has questions they will mail you a letter.  

 

Did you file separate for 2018?  If you filed Joint you have the Joint AGI you will need to file 2019.  What do you need her AGI and deductions for?   Are you filing in a community property state?

 

 

xmasbaby0
Level 15

Living separate, but not yet divorced or legally separated

If you were legally married in 2019 your filing choices are to file married filing jointly or married filing separately.  Unless you are in a community property state, you do not need to know about her AGI or her W-2.

 

Are you in a community property state?

 

 Community property states:  AZ, CA, ID, LA, NV, NM, TX, WA, WI

 

If you are not in a community property state, you do not need to concern yourself with her AGI or her W-2.  But--you do need her Social Security number to enter on your own return.  The IRS cross checks MFS returns to make  sure you do not "double dip" on itemized deductions and credits and dependents.

 

What you do need to concern yourself with is following the rules for filing MFS. If she itemized deductions then you must also itemize.

If you were legally married at the end of 2019 your filing choices are married filing jointly or married filing separately.

Married Filing Jointly is usually better, even if one spouse had little or no income. When you file a joint return, you and your spouse will get the married filing jointly standard deduction of $24,400 (+$1300 for each spouse 65 or older)  You are eligible for more credits including education credits, earned income credit, child and dependent care credit, and a larger income limit to receive the child tax credit.

 

If you choose to file married filing separately, both spouses have to file the same way—either you both itemize or you both use standard deduction. Your tax rate will be higher than on a joint return. Some of the special rules for filing separately include: you cannot get earned income credit, education credits, adoption credits, or deductions for student loan interest. A higher percent of your Social Security benefits may be taxable. Your limit for SALT (state and local taxes and sales tax) will be only $5000 per spouse. In many cases you will not be able to take the child and dependent care credit. The amount you can contribute to a retirement account will be affected. If you live in a community property state, you will be required to provide additional information regarding your spouse’s income. ( Community property states:  AZ, CA, ID, LA, NV, NM, TX, WA, WI)

If  you are using online TurboTax to prepare your returns, you will need to prepare two separate returns and pay twice.

 

https://ttlc.intuit.com/questions/1894449-married-filing-jointly-vs-married-filing-separately

https://ttlc.intuit.com/questions/1901162-married-filing-separately-in-community-property-states

https://ttlc.intuit.com/questions/1894449-is-it-better-for-a-married-couple-to-file-jointly-or-separ...

 

 

If in fact you are in a community property state, you might want to consult a tax professional to help you navigate a contentious situation and avoid tax issues that may arise.

 

 

 

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**
Opus 17
Level 15

Living separate, but not yet divorced or legally separated


@JFrustratedHusband wrote:

My wife and I have been living separate for 2.5 years now, but at this time we are not legally separated, although we are going through the divorce process.

 

At this time, she is refusing to co-operate so I can file my taxes, as I still need to know her AGI and how many deductions she claimed. Through the divorce process so far, I do have access to a copy of her W-2 form, and it appears that although we made similar wages last year, she has a lot more tax taken out than I did, so I am thinking she may have filed as single. as opposed to married filing separately, as I am trying to do. What are my options at this time?


You do you.

 

You file married filing separately.  You might be able to file as head of household if you provide care in your home for a qualifying dependent who lives in your home more than half the year.  You don't need to know anything about your spouse other than her social security number.

 

If you are in a community property state, your income might not be community property after the separation, but you probably need to get attorneys and accountants involved to be able to file correctly.  Don't struggle with an uncooperative spouse, that's what attorneys are for.  

 

If your spouse has more tax taken out that might just be a choice to get a larger refund or they might not know what they're doing, it's not your problem.

 

If your spouse takes itemized deductions and you take the standard deduction, the IRS will eventually send you a letter saying that is not allowed, you must itemize, at which time you can submit an amended return listing whatever deductions you have (something is better than nothing, because the standard deduction if your spouse itemizes their deductions is zero.)  If you know ahead of time that they will itemize that is useful to you so you can itemize now, but it is not essential.  Likewise, if you itemize and your spouse does not, your spouse will get an IRS letter.  But it's not your problem.  You do you. 

*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*
JFrustratedHusband
Returning Member

Living separate, but not yet divorced or legally separated

We filed as married filing separate last year. I have had 0 direct contact with her since the end of June of last year, and at this point have made multiple attempt through my divorce attorney to get responses about taxes, but have yet to get a response.

 

as for needing her AGI and what she claimed as deductions, that is what Turbotax is asking me, saying that I need that information. I believe she most likely took the standard deduction, because we made around the same amount last year (approx $31,000)

 

We both still live in the same state, NY, and have no children so that makes things a little easier at least. 

Opus 17
Level 15

Living separate, but not yet divorced or legally separated


@JFrustratedHusband wrote:

We filed as married filing separate last year. I have had 0 direct contact with her since the end of June of last year, and at this point have made multiple attempt through my divorce attorney to get responses about taxes, but have yet to get a response.

 

as for needing her AGI and what she claimed as deductions, that is what Turbotax is asking me, saying that I need that information. I believe she most likely took the standard deduction, because we made around the same amount last year (approx $31,000)

 

We both still live in the same state, NY, and have no children so that makes things a little easier at least. 


If you filed separately last year as well, you don't need her AGI and Turbotax should not be asking.  (Possibly this is due to ACA credits?  But if you don't live together your ACA credits should not be tied together so I don't see why it's a problem.  We might need to rope in an ACA expert on this issue.)

 

If you don't know her deductions for this year, just select standard and let the IRS worry about it.  You do you. 

*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*
JFrustratedHusband
Returning Member

Living separate, but not yet divorced or legally separated

Tried filing as is, apparently it is the NY return, and not the Federal that needs to know her AGI and what she claimed for exemptions (I misspoke before and said deductions), and that is in regards to the "New York State and New York City Household Credit for Married Filing Separate Taxpayers".

 

TurboTax will not let me file without having this information.

 

Would there be any sort of penalty if I were to file as single instead, as I do not qualify under Head of Household?

macuser_22
Level 15

Living separate, but not yet divorced or legally separated


@JFrustratedHusband wrote:

 

 

Would there be any sort of penalty if I were to file as single instead, as I do not qualify under Head of Household?


Filing single when actually marred would be tax fraud with lots of penalties and possible jail time.

 

Talk to yiur divorce attorney to get her information,  she is required by law to provide it to you.

**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
Opus 17
Level 15

Living separate, but not yet divorced or legally separated

The household credit has a pretty low income limit and is not worth very much.  Is there a way to just decline it?

*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*
Opus 17
Level 15

Living separate, but not yet divorced or legally separated

What’s your income? The household credit is zero if the combined income of both spouses is more than $32,000.  If your income is more than that, TurboTax shouldn’t even ask you and I would consider that a programming mistake.  If your income is less, you can bypass the question by giving a spouse number that will add up to more than $32,000 for both of you (which you might already know is true even if you don’t know the specific amount). 

*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*
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