Divorced couples filing MFJ

[Rae]

This has been bothering me, so I thought I'd throw it out to this group. I would like to know when it started that lawyers and/or tax preparers decide that a newly divorced couple (divorced before the end of the year) can file MFJ. One shady tax preparer did the federal MFJ, because the IRS doesn't know & the state single because the divorce is on record in the state. I see nowhere in the IRS regulations that you can choose to file MFJ if you're divorced.

Some friendly comments, please? This drives me crazy!

Happy days!
Rae

[Burke]

Marital status is determined as of the last day of the tax year. If divorced on or before that date, must use other than MFJ or MFS. Single or HOH, whichever they qualify for.

[Koss]

Divorce

You can't file MFJ if you were not married on the last day of the year.

If a couple gets their divorce finalized in January or February, then they can still file MFJ for the previous year, because they were legally married on the last day of the year.

This may lead to some confusion for taxpayers, and for lawyers and tax professionals who don't really know what they are doing.

I have occasionally seen divorce decrees that actually state that the couple will file separately. Here again, this makes sense, in a way, if the judge is signing the divorce decree in March. They were legally married at the end of the year, so they have a choice: they can file MFJ or MFS. The divorce decree is an agreement between the parties as to how to end the marriage. They can certainly agree to file separately. They could also agree to file MFJ, since they were married at the end of the year.

The divorce decree is a court order, and it is a legally binding contract between the spouses who are divorcing. They can agree to anything--as long as it isn't against the law. So if they were legally married on the last day of the year, and they agree, in the divorce decree, to file MFS, or MFJ, then that agreement is valid and binding.

But a contract is not valid and binding if it calls for the parties to do something that is against the law.

I'm not saying that it would invalidate the entire divorce decree. But a clause in a divorce decree that says the couple will file MFJ is not valid and is not enforceable if they were not married at the end of the year, because it violates federal law.

Some boneheaded divorce lawyers may not understand this. After all, if a divorce decree can effectively require a couple to file separately, why can't it require a couple to file joint? It can. If they were married at the end of the year...

BMK

[Gary2]

One caution: In MA, the divorce isn't final until 90 days after the judge has signed off (possibly 120 in some cases). I don't know whether there are any other states like this. But this means that in MA, if the MA probate judge signs off on Dec. 1, they're still married on Dec. 31.

[DaveinTexas]

In Texas

A common law marriage is one where two people live together, hold themselves out as husband and wife and agree to be married.

So if a couple were to divorce before year end, the decide to file jointly for the same tax year, this constitutes remarrying or forming a common law marriage.

Talk about a lot of attorney's fees to correct this no no.

[taxea]

If the preparer is aware of the status, which the preparer should be, then he/she needs to be reported.

[Justataxguy]

Someone posted on another board about a newly divorced (2012) couple, one of who's lawyer said they could file MFJ one last time. A comment was made in the post about lawyers not needing testing and one of respondents said to the OP "Go for it. MFS or Joint. You make the call", neither of which would have applied in the case cited.

[Rae]

Preparer!

If the preparer is aware of the status, which the preparer should be, then he/she needs to be reported.

This is a well-seasoned tax preparer that encourages people to bend the law. Like taking Catholic grade school tuition as a donation!
He knows the couple quite well and because of the statement "we'll file the state as single because that's where it's recorded". He's basically telling the client (husband handles it) the feds won't catch him!
Has always rubbed me the wrong way.

[Bees Knees]

Has always rubbed me the wrong way.

Well, if you know who he is, you can always file a complaint against him. See this article:

http://www.thetaxbook.com/updates/TheTaxBook/Updates/2011%2012-15%20news%20-%20Complaints%20Against%20Preparers.pdf

[taxea]

This is a well-seasoned tax preparer that encourages people to bend the law. Like taking Catholic grade school tuition as a donation!
He knows the couple quite well and because of the statement "we'll file the state as single because that's where it's recorded". He's basically telling the client (husband handles it) the feds won't catch him!
Has always rubbed me the wrong way.

Please let me assist you in filing a complaint against this preparer if you don't want to do it.