The Ultimate Filing Status

[Corduroy Frog]

This seems so elementary, but I've been wrong so many times I thought I would waste your time with a simple question.

Met with a couple tonight - divorce was effective 12/07/12. Divorce decree (signed by a judge, no less) dictates that couple is to file married-and-joint for 2012, and no further direction beyond 2012.

Am I going crazy??

[Roland Slugg]

Frog, I don't know if you would be a very good judge, but I know that judge would not be a very good tax adviser.

That's a bizarre ruling, all right, but the judge's words notwithstanding, I don't think he has the authority to overrule the Internal Revenue Code. §6013(d) clearly states that in order to file a joint return the couple must be legally married as of the end of the tax year.

[Snaggletooth]

Thanks Roland

...at least I had the presence of mind to tell the couple they couldn't do this.

Actually, there was an agenda behind the idiocy. The wife works and has a substantial amount withheld from her paycheck. Husband works but gets a 1099-MISC for his efforts. For years, the wife's withholding subsized husband's failure to pay in.

Husband's lawyer had this clause put in the divorce decree and judge signed it.

Now he's stuck with having to pay a ton of money and she is getting back a huge refund. With respect to the decree, I do believe husband could legally prevail to go after some of the ex-wife refund. But if so, that is out of my hands. I had no choice other than to file both returns as Sngle or HOH.

[Roland Slugg]

One added thought ....

I have seen (or maybe just heard about) marital cases where the judge's order was dated on a certain day, but with an effective date as of a future day. This might be one of those orders. Check with the happy couple ... maybe even ask to see a copy of the judge's order.

[taxea]

The IRS code trumps local court orders.

[taxea]

...at least I had the presence of mind to tell the couple they couldn't do this.

Actually, there was an agenda behind the idiocy. The wife works and has a substantial amount withheld from her paycheck. Husband works but gets a 1099-MISC for his efforts. For years, the wife's withholding subsized husband's failure to pay in.

Husband's lawyer had this clause put in the divorce decree and judge signed it.

Now he's stuck with having to pay a ton of money and she is getting back a huge refund. With respect to the decree, I do believe husband could legally prevail to go after some of the ex-wife refund. But if so, that is out of my hands. I had no choice other than to file both returns as Sngle or HOH.

The wife signed the divorce agreement....perhaps her attorney told her it wouldn't hold up with the IRS so signing the agreement didn't matter.

[DaveO]

This very issue landed in the NE Supreme Court recently and they affirmed that no local judge could make a ruling contrary to the IRS code.

I one of my cases I even had the attorney for the estranged husband call me and say it was illegal for the wife to file MFS. I couldn't restrain my laughter before asking him for his cite.