We came to a legal separation agreement in January 2013. My spouse (wife) filed her taxes before me. She filed as married, separate and itemized.
Now if she did not itemize, and filed separate, could she have filed single, and we both could have filed separate taxes as single?
Steven Todd KepplerLitigation LawyerSomerville, NJ ·
If the terms of your separation agreement do not specifically cover how taxes are to be filed, then your spouse is likely free to file her taxes in any manner that she is normally entitled. since you're still married, she can file as married, filing separate if she desires.
As far as whether this maximizes your return (or potential return) I have no idea. I suggest you speak with an accountant and/or the attorney who prepared the settlement agreement.
I presume that your Separation Agreement did not address this issue.
Although one of the issues in Family Law cases is the filing of income tax returns, when there is any doubt whatsoever I always advise my clients to get expert advice from a CPA, who is a tax professional. Therefore, I recommend that you ask a CPA this question.
First, your inquiry is really for an accountant as opposed to an attorney, therefore for a reliable opinion you really should check with an accountant. Generally speaking, your tax filing status is based on your status as of December 31st of each year. On December 31st you were either married or divorced (there is no such thing as a legal separation in New Jersey that is recognized). If you were not divorced on December 31st you must file "married" either jointly or married filed separately.
Kenneth A. White, Esq.
New Jersey Family Law Attorney
since as of dec 31 you were still legally married you must file married seperate if you are filing seperate returns or married joint if you are both filing together one return.
