Should I file MFJ or MFS?

[warren0802]

My wife and her three children have not lived in my home since July 1, 2019.  She was indicted in October 2019 on Federal fraud charges by the VA.  We're not speaking and I would like to file my taxes.  I have 3 filing options:

1. I can file as MFJ and claim her 3 kids as dependents. ($11,500 refund from both Federal and state)
2. I can file as MFJ and not claim her 3 kids as dependents.  ($4000 refund from both Federal and state) 
3. I can file as MFS and not claim her 3 kids as dependents. (I owe the IRS $7300)

She has an agreement setup with the Father to claim the children on her taxes.  I'm not sure if she has filed her taxes or not.  Obviously, the return would reject if she has filed her taxes and I'm trying to claim her children.  That would leave me with option 2, which is great.  I'm trying to avoid option 3, and prison, at all costs.  I would hate for fear to drive me to option 3 when I don't need to file as MFS.  PLEASE HELP.

[xmasbaby0]

We answer many questions here, and usually it is straightforward enough to show a user the advantages/disadvantages of MFS vs. MFJ.  Personally, I do not think you should be seeking advice here from us.  Your situation is too tough for us.  You have an incarcerated spouse who clearly has been dishonest in the past.  So if you ask how she filed, will you rely on the answer?  Please seek help with this from your attorney to find out how she filed or even if she filed.

You could buy some time by getting an extension--an extension does not give you extra time to pay but it would give you extra time to sort this out and file your return.

https://ttlc.intuit.com/community/extensions/help/how-do-i-file-an-irs-extension-form-4868-in-turbot...

If you are getting a refund, there is not a penalty for filing past the deadline.  If you owe taxes, the interest/penalties will be calculated by the IRS based on how much you owe and when they receive your return and payment. The IRS will bill you for this; it will not be calculated by TurboTax.

Edit a few minutes after original reply----Another reason to wait to file until you sort this out is that if you make the wrong choice--after the filing deadline on July 15, 2020, you can amend a Married Filing Separately return to change it to married filing jointly, but after the deadline you cannot change from joint to separate.  So if you file a joint return and want to change it--it will be too late.

[Texas Roger]

If both she and the kids moved out on July1, the kids did not live with you at least one half of the nights during the year and you can't claim them as dependents on any return other than Married Filing Jointly.  The night of June 30 is only 182 nights which is less than half of the 365 nights in 2019. 

You cannot file as Married Filing Jointly unless your wife agrees to file Married Filing Jointly. 

If she will not agree to filing Married Filing Jointly, your only choice is to file Married Filing Separately and not claim the kids as dependents.

[warren0802]

I think the best way to go is married filing separate.  Thank you BOTH for your assistance.