Q: My husband and I have been separated for a yr and I have the kids. Can I file married filing sep. And claim the kids
We are in the process of divorce. And he abandoned me and the kids has not been part of their life for a year
A: Is this a question about your how to file your tax return? Assuming it is, the courts generally prefer that a couple that haven't gotten divorced yet look at the way to save the most taxes. You and your husband should agree to have an accountant or CPA prepare your return both ways - married separate and married joint. Often the married joint will save the most taxes, but usually that is for the person with the higher wages. Then you negotiate a way to share the tax benefit. For example, if by agreeing to file jointly with your husband it saves him money, then he should offer to give you 1/2 of his tax refund. Something like that. You can of course refuse to file jointly but a court might not like hearing that you did that if the only reason you did this is because you are mad at your husband and it causes a net tax loss for both of you compared to what you would have paid with a joint filing.
Now there may be a good reason to file separately such as where your husband is playing games and not reporting all his taxable income. So if you have grounds to file separately to avoid being part of an improper tax filing, then file separately. Now understand that what I am talking about here is where you are justified in believing that your husband is not going to properly report his income or he is taking deductions he legally can't take. However if you don't know that this is the case don't use the possibility of a tax problem as an excuse to file separately. There is what is called the innocent spouse exception which a spouse can raise after agreeing to file a joint return when later it turns out that their spouse didn't properly report something. The other spouse can claim they didn't know about this and will usually be excused from the resulting tax penalties.
A: PS Your marital status for tax purposes is determined on the last day of the year. So if your finalize your divorce anytime before December 31, 2018, you will be filing single for 2018. I would focus on getting your divorce finished. Also make sure you apply to get child support established as you can do that before you are legally divorced. The district attorney's office will help you for no charge.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.