Tax Refund Husband declared bankruptcy not me

[debbieszoo4]

My new Husband declared bankruptcy in October. The Trustee said he has to turn over his tax refund. My question is- I didn't declare and part of that refund is mine. I didnt have income but my 2 kids are the exemptions that make the difference. Without them he owes- with them he gets 5000.00 back. What about my part of the refund? Do I have to turn it over? We live in a community property state,

[FilingOnMyOwn]

Ok let me get this straight. You are wanting a part of the tax return from what your husband made on his employment? I know this doesn't matter but whos kids are they, when you say yours, is he not the father of them? I don't know really what your situation is, and I'm not trying to be overly judgemental, but something about the way you said it just seems like these are issues more deeply rooted than the money itself. I don't know whether or not you are entitled to or deserve money that you have not yourself earned, however no you will not get it.

[JimH]

One way to overcome this is to file "married filing separately". If filing jointly, issues like this are handled with federal form 8379 - Injured Spouse Claim and Allocation. This form should be filed with your federal tax return. Also, this may be a good year to have an accountant do your taxes - they will be able to tell you which method of filing will be most beneficial.

[bkfiler]

to figure it out you have to break apart the the refund into sections. how long have you been married to him. did he file bk before you married him? whos kids, etc.

pro-rate it and argue that point to the trustee.

[debbieszoo4]

The kids are mine- we have been married about a year and a half- he filled 14 months after we were married. Alot of the debt was from prevoious marriage

[SinkingFast]

Is your childrens' father in the picture?? Is it possible he also deducted/exempted the kids on his income tax return as well? I know several yours/mine/ours families where both parents are claiming the same kids on both households tax returns.

Kids can only be deducted once, by which ever parent has the court ordered legal right to do so. If both you and the ex are claiming the kids, then you need to know who has the legal right to do so.

If you have the right to deduct your children, and filed for a joint return, I'd think half the return belongs to you. Whether or not the Trustee and/or Judge see it that way may be an all together different story.

[JimH]

You really need to see an accountant for your taxes this year. The EIC is intended to benefit the children so it's possible you'll get all of that - typically this is protected from the trustee anyways - at least that is what others have been posting on here. Since you did not work at all and the return is based on your husband's earnings, this is a very complicated question.

[edwards2]

debbie -you are obviously the custodial parent...are you the only one eligible to to claim the children? IN Tennessee where I live unless you got a divorce prior to 1987 the custodial parent automatically claims the children no matter what. I would think something could be worked out given children are involved. I am wondering how that works that you claim the children based on your husband's income when their father pays child support. I know that we were able to claim my husband's kids because it was written that way in the divorce decree. We still paid very high child support which was taxed as part of our income. Since you said you dont work how would you get a tax refund at all if your husband didnt work? I understand Jim's advice about married filing separately but how do you file if you dont have any income?

[zariaH]

debbie -you are obviously the custodial parent...are you the only one eligible to to claim the children? IN Tennessee where I live unless you got a divorce prior to 1987 the custodial parent automatically claims the children no matter what. I would think something could be worked out given children are involved. I am wondering how that works that you claim the children based on your husband's income when their father pays child support. I know that we were able to claim my husband's kids because it was written that way in the divorce decree. We still paid very high child support which was taxed as part of our income. Since you said you dont work how would you get a tax refund at all if your husband didnt work? I understand Jim's advice about married filing separately but how do you file if you dont have any income?

For tax purposes CHILD SUPPORT is not income according to the IRS. The non-custodial parent can not claim the child support paid on any federal tax return. Unless it is written differently in a divorce decree (such as alternating years) the custodial parent has ALL the right (not the NCP) to claiming the children on income tax returns. This also changes if there is TRUE Joint Custody (50/50 split).

As many others have advised, it is better to consult the bankruptcy attorney and have an account do your taxes this year. This covers all the bases.

[JimH]

I looked a little further into this. Luckily you live in a community property state so half of your husband's income is technically yours so you can use form 8379 - Injured Spouse Claim and Allocation, as I stated before. I have attached it below to make it easy for you. Read through the instructions so you understand a little more about what the form does for you. Take it with you when you go to see an accountant to file your taxes. As always, run this by your atty before you send in the return.

http://www.irs.gov/pub/irs-pdf/f8379.pdf

[ducksinarow]

Easy, file seperately and there will be nothing for the trustee to get since you said your husband will owe if he files on his own.

Pay what he owes with your refund and hope there is some left over after that.

[JimH]

Easy, file seperately and there will be nothing for the trustee to get since you said your husband will owe if he files on his own.

Pay what he owes with your refund and hope there is some left over after that.

The only problem is that she has no earnings to file with. If she files separately, her EIC will be $0 because you must have earnings to receive "Earned Income Credit".

[ducksinarow]

I don't know whether or not you are entitled to or deserve money that you have not yourself earned, however no you will not get it.

Ever heard of earned income credit?

I used to have employees who paid nothing in all year but when tax time came around they got several thousand back!

[ducksinarow]

The only problem is that she has no earnings to file with. If she files separately, her EIC will be $0 because you must have earnings to receive "Earned Income Credit".

Ohh I thought someone posted above that in her state she can claim up to half of his income as her own??

[ducksinarow]

I am wondering how that works that you claim the children based on your husband's income when their father pays child support.

If the father is paying child support I can guarantee you the money he sends is no where near the amount the new husband and she spend on them.

Lots of women/men get child support and they also get to file the children at the end of the year on their taxes. The child has been living with them for that time.

When I do my taxes it asks if the child has been living with you for more than 6 months out of the year so I guess that means something. I am happily married and all of our babes belong to US but I do remember seeing that on the tax return sheet.