Legally Divorce before 12/2021.

[GVU009]

I was going through old banks statements and I came across one that showed my ex-husband had cashed 2 refund checks early 2022 with both our names on it.  It had an address I've never resided at on it as well.  Divorce was finalized 5/2021.  Is there anything I can or should do?  Also,  we have 1 dependent and I'm not sure if he claimed the dependent tax credit or not.  I'm the custodial parent/sole managing conservator.

[rjs]

Were the checks that your ex cashed in early 2022 refunds for your 2021 tax returns? Why were there two checks? Was one for federal and the other for state, or were they for two different years? If the tax refund checks were payable to both of you, you must have filed a joint tax return. But if your divorce was final in May 2021 you should not have filed a joint return for 2021. If you want to try to get your share of the tax refunds, you probably need to consult your divorce lawyer. If the amount is small, it might not be worth the trouble and expense.

If you did improperly file a joint tax return for 2021, even though you were divorced before the end of the year, you should correct the returns. But it's not as simple as just filing an amended return, because you are not normally allowed to amend from a joint return to individual returns. Your situation is an exception to that rule. The IRS calls it an "invalid joint election." But the procedure for correcting it is complicated and would require help from a tax professional. Also, your ex-husband would have to participate, which I sense might be difficult. And of course correcting the invalid joint election will get involved with the refunds that were already paid for 2021.

Did you file your 2022 tax return and claim your dependent child? If you e-filed and the return was accepted, then no one else claimed the child. If you filed by mail you will get a letter from the IRS if anyone else claimed the child. If you have not yet filed for 2022, go ahead and file, and claim the child as your dependent. If you e-file and it is accepted, then, again, no one else claimed the child. If your e-file is rejected because your dependent has already been claimed by someone else, you will have to file by mail. You and the other person will both get letters from the IRS, and you will have to send the IRS proof that you are the custodial parent.

Being the managing conservator has nothing to do with taxes. Custody for tax purposes is not determined by your divorce decree. Under the tax law the custodial parent is the parent that the child lived with for more nights during the year.

[Mike9241]

did you file your own returns for 2021 and 2022 and did you get the proper refunds? 

it would seem that for these years being the custodial parent and maintaining a separate household for more than 1/2 the year for you and your child where you paid more than 1/2 the costs you could file as head of household and claim the child credits while he would have to file as single (unless remarried).  we don't know what the divorce decree said about custody. the IRS doesn't care. it says custodial parent is the one who can claim them.  on the other hand, the divorce decree might specify each could claim the child in alternating years or something else. such a ruling would requirethe custodial parent to provide the other with form 8332.

violating the court decree could end up with the parties before a judge who could impose penalties on the one violating the decree. 

[Opus 17]

If you were unmarried as of 12/31/21, you should have filed as either single or perhaps head of household for 2021.  You would not be allowed to file as married filing jointly, even though you were married for part of the year, and there is no way your refund for 2021 would have been issued as a joint check with your spouse.  

Is is possible this was a check for the 2020 or earlier tax year that was cashed late?  Maybe there was an amended return for a previous year, or maybe a check was lost and re-printed.  The tax year that corresponds to the refund should be printed on the check. 

You can check your tax return for 2021 by getting your IRS transcript.

https://www.irs.gov/individuals/get-transcript

If you filed a joint return with your spouse for 2021, or your spouse filed for you, you can re-file as a single person or as head of household.  However, if you don't have copies of what you originally filed, it will take some detective work to figure out how to file (you might file an original single return or an amended return).  I think you will probably need the help of a professional tax preparer.  There will also be issues if you try to change from married to single since you can't file a return as married filing jointly unless both spouses agree, so making the correction may involve explaining to the IRS how it happened that you allowed someone to file an incorrect return in your name.

You also won't be able to just get a new check, the old check has to be accounted for.  For example, if you can prepare a return under HOH that shows a $3000 refund, but your spouse already cashed a joint check for a refund, your share of the joint check will come out of your expected refund.  (The IRS will see the joint check cashed and will assume that you benefitted from the check.  It's not their responsibility to make sure spouses split things fairly.  That's something that should have been addressed in your divorce.  Or if you allowed your ex to take advantage of you, that might be a new civil matter between you.  The IRS won't re-issue a check if someone already cashed it.)

I think you may want professional assistance here. 

[GVU009]

I've gotten some really good question regarding my situation! I double checked my filing status for 2020 and 2021 and I did file HOH and claimed a dependent.  2019 I filed married filing separately.  My ex-husband lives in a state where state taxes are collected so I'm thinking the lesser amount of the two reflect filing local taxes.  The only thing I can think of is if he logged into our Turbo account and didn't change anything from the previous years information and continued to fill out the online tax form. He was able to cash both checks late February so he could have very well filed before I did.  More recently (around April)  I got a notification from Intuit Tax that someone tried to use my information to file taxes but it was rejected.  Shortly thereafter I received a deposit from the OAG's office into my bank account.  Putting 2 and 2 together he tried to file without changing his filing status or tried claiming me as a dependent etc, etc. 

[GVU009]

I double checked my filing status for 2020 and 2021 and I did file HOH and claimed a dependent.  2019 I filed married filing separately.  My ex-husband lives in a state where state taxes are collected so I'm thinking the lesser amount of the two reflect filing local taxes.  The only thing I can think of is if he logged into our Turbo account and didn't change anything from the previous years information and continued to fill out the online tax form. He was able to cash both checks late February so he could have very well filed before I did.  More recently (around April)  I got a notification from Intuit Tax that someone tried to use my information to file taxes but it was rejected.  Shortly thereafter I received a deposit from the OAG's office into my bank account.  Putting 2 and 2 together he tried to file without changing his filing status or tried claiming me as a dependent etc, etc. 

[Opus 17]

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@GVU009 wrote:

I double checked my filing status for 2020 and 2021 and I did file HOH and claimed a dependent.  2019 I filed married filing separately.  My ex-husband lives in a state where state taxes are collected so I'm thinking the lesser amount of the two reflect filing local taxes.  The only thing I can think of is if he logged into our Turbo account and didn't change anything from the previous years information and continued to fill out the online tax form. He was able to cash both checks late February so he could have very well filed before I did.  More recently (around April)  I got a notification from Intuit Tax that someone tried to use my information to file taxes but it was rejected.  Shortly thereafter I received a deposit from the OAG's office into my bank account.  Putting 2 and 2 together he tried to file without changing his filing status or tried claiming me as a dependent etc, etc. 

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As long as you filed correctly and successfully for 2021, and you know that any refund you claimed was deposited in your own bank account, I would consider the matter closed and more or less ignore the mystery about how some canceled checks with his name wound up in your files.  You could do a bit more detective work based on the information from the checks (payer, date, other info or code words on the checks) but if you believe you filed correctly and got what you expected in refunds, then these mystery checks don't really matter.  And if you did file correctly but your spouse somehow got their hands on your refunds, that is something you will have to take up in your local court, the IRS won't do anything if the person named on the check is the person who cashed it.