Legally Separated or Not?

[Freedom]

I talked to my tax lady yesterday and asked her about the pros and cons of finishing this in December of this year vs. finishing it in January.  She asked me if we were legally separated.  I told her yes, he had filed for divorce.  She then said that it's *not the same thing*.  She says a legal separation has to be signed by both parties.  Is that correct?  I haven't signed anything other than the interrogatories.  So if this is correct, what does it really mean as far as the practical side of things?  How does it affect assets/debts acquired since he filed his complaint?  (ie. the house he bought, the motorcycle I traded)

This is Alabama.  I'm going to talk to my atty today, but wanted to throw this out there for you guys as well.  Opinions?

[TC]

I think the following link will probably give you the answers you are seeking:

http://www.divorceinfo.com/allegalseparationwlee.htm

TC

[Freedom]

I think the following link will probably give you the answers you are seeking:

http://www.divorceinfo.com/allegalseparationwlee.htm

TC

Ok, I read thtat and it provides useful info, but I still have a question.  Would a Complaint for Divorce serve also as a request for legal separation or do they have to be different documents?  Seems that the legal separation is a voluntary precursor to the Complaint and we skipped that step.

[InDenial]

Speaking strictly from the persepctive of federal taxes:

If you have a final divorce decree or a decree of separate maintenance by Dec. 31st, then when it comes time to file your taxes for 2010, you will not file jointly.  You will file as head of household if you have a child living with you more than 50% of the time. Or you will file as single.

Exception: IF your spouse has been out of your home for the last 6 months of this year, AND you paid more than half of the cost of keeping up your home, AND you have a dependent child living with you for more than 50% of the time, then you can also file as Head of Household.  This is beneficial for those who have long separations.

Please see publication 504 "Divorced or Separated Individuals" for more details http://www.irs.gov/pub/irs-pdf/p504.pdf

If you are still married on Dec. 31, and don't meet the exception above (i.e. spouse moved out less than 6 months before end of the year) then your only options are to file as married filing jointly or married filing separately.

Generally speaking, married filing separately is the least desireable status, from a tax perspective.

Some couples will owe less tax if they file jointly. Other couples will owe less tax if they can file as single.  

The tax saving could be substantial by getting divorced before Dec. 31st. Then again, it might be substantially cheaper to wait until Jan. 1.  Your tax person should be able to figure it out.  However: if you cannot come to an agreement on how to split your taxes, you may not want to file together, no matter what the tax advantage.

[CollegeDad]

You are not "divorced" just because your husband went and filed for divorce.  You are not even legally separated just because your husband has filed for divorce.  

You are still married until the day that the judge presiding over your case signs your final divorce decree.  And even then, it can be appealed for up to 42 days after the judge has signed it.  But, unless there was a mistake in the decree that you or your husband can't live with, there shouldn't be any need to appeal it.  

So, you are still a married woman.  To speed things up, you can handle your divorce as an "uncontested" divorce.  If you do this, then either you or your husband will draft up a divorce decree and if you and your husband agree with everything that is written into your decree, then you both sign it and send it to a judge for his signature.  He will have to hold it for 30 days before he can sign it because there is a mandatory "cooling off" period of 30 days in Alabama.  But then the judge can sign it and you will be legally divorced at that time.  

One advantage for being divorced before January first is to be able to file your taxes next year as a single person.  That way, you don't have to wait for your ex-husband's cooperation to receive any tax refund that you may be entitled to.  I'm assuming that you would be filing married jointly where both of you have to sign the tax return before you can mail it in.  I believe you would still both have to sign each other's return if you filed married separately.  I don't believe you get as big a tax advantage filng this way either.  Also, I believe the IRS makes the tax refund check out to both of you meaning that you have to get your ex-husband's signature on the check before you can cash it and deposit your half into the bank.  This is all a hassle you can avoid if you just go ahead and get divorced before the year is out.  

Of course if you're handling your divorce as a "contested" divorce, then I doubt that you will be able to finish it and get your final decree signed by your judge before the first of January.  In fact, I can almost guarantee that you will not make a January 1st deadline.  

Talk to your attorney and decide what the best course of action is for you.  Generally, if your husband has conceded custody of the kids to you and is making a fair offer of distribution of property then you probably don't need to go down the expensive and time consuming path of a contested divorce.  Just do an uncontested divorce and get on with your life.  

[TC]

I think the following link will probably give you the answers you are seeking:

http://www.divorceinfo.com/allegalseparationwlee.htm

TC

Ok, I read thtat and it provides useful info, but I still have a question.  Would a Complaint for Divorce serve also as a request for legal separation or do they have to be different documents?  Seems that the legal separation is a voluntary precursor to the Complaint and we skipped that step.

I am not from Bama and I am an attorney.  However, based on my own personal experience, no, you are not even legally separated.  Normally a legal separation is a seperate action, UNLESS, based on the original filing the court issued some order wherein it states you are legally separated.

TC

[livealittle]

the IRS has it's own rules for all this. You should go check out

www.irs.gov

for more information

[m_t]

I am not from Bama and I am an attorney.  However, based on my own personal experience, no, you are not even legally separated.  Normally a legal separation is a seperate action, UNLESS, based on the original filing the court issued some order wherein it states you are legally separated.

TC

Pssst, TC - I think you mean that you are NOT an attorney....

[TC]

I am not from Bama and I am an attorney.  However, based on my own personal experience, no, you are not even legally separated.  Normally a legal separation is a seperate action, UNLESS, based on the original filing the court issued some order wherein it states you are legally separated.

TC

Pssst, TC - I think you mean that you are NOT an attorney....

YES, I AM NOT an attorney!

Long day at work...my apologies.

TC

[Freedom]

Question answered.  We are NOT legally separated.

Thanks for the input!

[InDenial]

I'm assuming that you would be filing married jointly where both of you have to sign the tax return before you can mail it in.  I believe you would still both have to sign each other's return if you filed married separately.  

Both must sign if filing jointly.  If filing separately, you must report your spouse's name and SS# on the form, but your spouse need not sign your return.

I don't believe you get as big a tax advantage filng this way either.

The IRS says right up front that most married people will pay less tax if filing jointly. Also, if your spouse itemizes, you have to as well, even if you would have done better taking the standard deduction.

Also, I believe the IRS makes the tax refund check out to both of you meaning that you have to get your ex-husband's signature on the check before you can cash it and deposit your half into the bank.  

I think that if you file jointly, the check is made out to both; but that if you file separately the check is only made out to the person who filed the form. My Ex had to file married-filing-separately last year and I know I didn't sign any refund check for him. I suppose it's possible he didn't get a refund... But I know I didn't sign his return. 

I was able to file as Head of Household, because he'd been out the house for over 6 months and I have custody of my children > 50% of the time. My refund was direct-deposited into an account with only my name on it.

[mtnester]

The IRS says right up front that most married people will pay less tax if filing jointly. Also, if your spouse itemizes, you have to as well, even if you would have done better taking the standard deduction.

Likewise, if you file separately and you take a standard deduction, the he must do the same.  Depending on your income situation, this could cost him dearly.

I am a stay at home wife and moved out of our house after mediation.  Then he contested the settlement agreement and at the end of last year we were still legally married.  I could have filed separately with a standard deduction and cost him upwards of $8K in extra taxes.  I agreed to file jointly with him if he agreed to share the tax savings (NOT tax refund because a refund only means you overpaid your tax).  The amount of tax paid is on line 43 on the return or within a line or two of there.  He did up returns for joint filing and separate filing and we looked at what the joint filing would save in amount of tax paid.  It was substantial since he's in upper management and I had no income to speak of. 

I'm fully expecting him to ask to postpone the divorce until after Jan 1 to do a joint return again.  I've been paying estimated quarterly taxes so I'm covered.  If I can get more money from him in the form of a percentage of the tax savings, I'll do it because it's not about the "things" I could get from the house, it's all about dollars and cents.