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What if my spouse files taxes separately?

On Behalf of | Aug 11, 2023 | Property Division |

Before a California couple decides to divorce, there is usually a separation period. California law does not require you to be separated from your spouse for a certain time before filing for divorce, but there is a six-month waiting period before you can finalize your divorce.

If your separation or waiting period happens during tax season, there is a chance your spouse may decide to file their tax return as married filing separately. This means that you must also file your taxes separately and cannot file a joint tax return.

What does married filing separately mean?

Married filing separately is exactly what it sounds like: you and your spouse file separate tax returns, with each return listing only your own income, deductions and exemptions.

While there are some benefits to filing separately, there are disadvantages, as well. Some couples choose to file separately if one spouse has substantial debt, such as student loan debt that is subject to an income-based repayment plan.

Possible disadvantages to filing separately

However, you could lose out on certain tax credits that are reserved for married couples filing jointly. Additionally, California is a community property state, which means property acquired during your marriage is assumed to be equally shared between you and your spouse.

This can make things slightly more complicated when filing a separate tax return. Ideally, you and your spouse should discuss the best way to file taxes when you are separated and decide on the method that produces the best result overall.

But what happens if your spouse files married but separate without your consent, and filing your own separate return costs you more money?

You have options if you are forced to file separately

You likely cannot undo the tax returns, but you can argue that you should receive a credit for the amount that you lost because you were forced to file a separate tax return. Perform a comparison of a joint filing and your separate filing to calculate the amount you lost.

When negotiating your divorce agreement, you can ask for this amount to be paid to you as part of the overall property division.


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