Susan K. Smith,
Attorney-Mediator
Hartford and Avon, Connecticut
Copyright 1996-2007 Susan K. Smith. All
rights reserved.
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Format (PDF Format)
Table of Contents:
Grounds for Divorce and Fault |Filing and Procedural Basics
|
Division of Marital Property |
Retirement Income
|
Alimony |
Contempt |
Tax Aspects
|
Innocent Spouse Rule |
Child Support |
College Education Support
Orders |
Custody
|
Relocation of a Child by One Parent
|Visitation
by Grandparents and Other Third Parties
|
Modification of Alimony or Support Orders |
|
Automatic Orders |
Wills of divorced persons
Spouses In Connecticut do not need to prove "grounds" in order to obtain a
divorce. The Court will issue a judgment of divorce on the ground that the
marriage has "irretrievably broken down." People refer to this as a "no-fault"
divorce. Fault can be considered by the court, however, in determining the
financial orders (alimony and assignment of property).
Link to Article: Marital Misconduct: Does It Count?
Fault generally makes a
difference in the court's award when the fault is substantial and it
substantially contributes to the breakdown of the marriage or the loss of
marital assets. Fault plays less of a role in modern divorce than people think;
courts and lawyers are more focused on how the finances and other issues can be
handled fairly and equitably.
Where you must file
See Court House Guide - a table of
Connecticut Judicial Districts, towns served by each, addresses and
phone numbers. For additional information, including travel directions
and office hours, see the State's
judicial website page.
Residency Requirement
One party must have been domiciled
continuously in Connecticut for a period of 12 months prior to the
date that the Court issues the judgment. You may file for divorce without
meeting the 12-month residency requirement as long as you meet the
requirement on the date of the divorce. There are other exceptions as well:
the reason for the divorce arose after you and your spouse moved to
Connecticut, if you were Connecticut residents before going on duty which
took you out of state, or if you were previously a resident of Connecticut
and moved back to Connecticut with the intent of making Connecticut your
permanent residence.
Waiting Period
The waiting period is
90 days from the "Return Date" (official starting date of your
case), but additional time
is needed for the marshal to make service and for the served papers to be
returned to the court prior to the Return Date. Actual time is about 4 months under
the best of all circumstances. All deadlines and statutory periods are
measured from the Return Date.
Costs
- Court Filing Fee: $225.00
- Sheriff's Fee: $30-50
- Parenting Education Class: $125.00 per
party
- Certified Copy of Decree: $25
Case Management Program
There is a mandatory case
management conference 90 days from the "return date" (the official starting
date of the case). If the parties file a case management agreement stating
that all issues are resolved, the parties can appear and request that the
divorce be granted on the Case Management Date. If a case is contested,
deadlines for completing discovery and financial disclosure will be assigned
by the court. Under the new program, it is theoretically possible to have a
divorce granted on the 90th day. You do not go to court if you file the Case
Management Report prior to the Case Management Date.
Automatic restraining orders are entered upon the issuance of a
complaint for divorce.
Read the full text of the official orders. The orders are binding
upon the plaintiff (person who files for the divorce) at the time the
papers are issued and are binding on the defendant spouse at the time
the papers are served. The purpose of the automatic orders is to provide
a cooling off period to maintain the status quo and to deter the parties
from raiding assets or taking other steps to disadvantage the other
spouse at the outset of a divorce. The secondary purpose of the
automatic orders is to save the parties the expense of filing motions
for restraining orders and certain discovery motions at the beginning of
each case. For example, the automatic orders restrain (prohibit) the
parties from:
-
withdrawing large amounts of funds,
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incurring major expenses,
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selling or mortgaging property,
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changing life insurance beneficiaries
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relocating children
The Court has the discretion to modify any of the orders. Modification
is applied for by filing a motion stating the grounds for modification.
Connecticut is referred to as an "all property equitable
distribution state." In Connecticut, the Court has the power to "assign
to either the husband or wife all or any part of the estate of the other."
Conn. Gen. Stats. § 46b-81. Any property, therefore, regardless of when or
how acquired, can be re-distributed by the Court. See, e.g. North v. North,
183 Conn. 35 (1981) (all property, including pre-marital or inherited
property, is subject to division by the court). The statute "does not limit,
either by timing or method of acquisition or by source of funds, the
property subject to a trial court's broad power [to allocate]." Lopiano v.
Lopiano, 247 Conn. 356, 364 (1998).
In making the allocation, the
factors the Court will consider are: the length of the marriage, the causes
of the dissolution or separation, the age, health, station, occupation,
amount and sources of income, vocational skills, employability, estate,
liabilities, special needs, future earning capacity and prospect for future
acquisition of capital assets and income. Conn. Gen. Stat. § 46b-81.
The court also considers the
contribution of each of the parties in the acquisition, preservation or
appreciation of the assets. Conn. Gen. Stat. § 46b-81. Homemaking is
considered a valuable contribution to the acquisition and appreciation of
assets.
Property acquired prior to the
marriage is often, but not always, considered the separate property of the
person who acquired it. Appreciations or additions to that property may be
considered marital acquisitions.
The
Marital Residence
The home that the parties live in
prior to divorce is often referred to as the marital residence. Like all
property acquired during the marriage, both parties have an interest in it,
regardless of how the property was acquired or is titled. Leaving the
marital residence prior to or during the divorce does not constitute a legal
abandonment of your property interest in the home. Because couples are
afraid that moving out will somehow prejudice their interest in the home,
they often live together while the divorce is pending. The tension that
results can be very damaging to children.
Because of how the Automatic
Orders are written, if you are not residing in the home when the divorce
papers are served, you do not have an automatic right to remain in the home
after the service of the divorce papers. "If the parties are living together
on the date of service of these orders, neither party may deny the other
party use of the current primary residence ... without order of a judicial
authority." Once the case starts, however, either party may file a motion
for use of the home and the judge will make a decision as to who should
occupy the home until the case is decided. "The court may also award
exclusive use of the family home . . . to either of the parties as is just
and equitable without regard to the respective interests of the parties in
the property." Conn. Gen. Stats. § 46b-83. If the case has not officially
started (i.e. it is before the Return Day) a party can file a motion and an
order to show cause to bring the person denying access to the family home
into court.
Stock Options
Vested and unvested stock options
can be part of the marital estate and can be distributed by the Court at the
time of dissolution. Bornemann v. Bornemann, 245 Conn. 508 (1998). A
discussion of how the marital portion ("coverture factor") of
unvested options can be
calculated is discussed in Wendt v. Wendt, 59 Conn. App. 656, (Sep
05, 2000) (NO. 18388). Compare
Hopfer v. Hopfer, 59, Conn. App. 452 (2000)
(wife not entitled to portion of unvested options which were granted after
the divorce was filed and shortly before the divorce decree was issued).
The general rules is that the marital estate is
valued at the time of the issuance of the decree. Exceptions can be found
In the Wendt and several other cases where the court looked at the circumstances of
the marriage and separation and valued certain assets at the time of the
separation.
Personal injury awards
Settlements,
judgments and workers' compensation payments can be treated as marital
property and distributed by the court to either party. Lopiano v.
Lopiano, 247 Conn. 356 (1998). The court looks at multiple factors when
deciding whether an award be shared with a spouse.
Inheritances and Gifts
The court has jurisdiction to allocate Inheritances and gifts that have been
received to either party regardless of the source. The court looks at
multiple factors when deciding whether an inheritance or gifts should be
shared with a spouse. When the money was received, how it was used during
the marriage, whether it was kept separate and what it was received for.
The concept of "property"
includes a presently existing, enforceable right to receive income in the
future. Property does not include those interests, however, that might be
speculative or which constitute a "mere expectancy." Rubin v. Rubin, 204
Conn. 224, 230-31, 527 A.2d 1184 (1987) (husband's status as a possible
residuary beneficiary under revocable trust and will of his mother was a
"mere expectancy" and his possible future inheritance should not have been
the subject of a contingent order of the court, nor was evidence of the
estate plan admissible at trial).
A medical degree is not
marital property which may be divided by the court in a dissolution of
marriage. Simmons v. Simmons, 244 Conn. 158 (1998)
Once ordered by a Court, marital
property distributions cannot be modified.
Finality of Property
Settlements
Property settlements in divorce judgments can only be
reopened for a limited time after they entered and only on specific grounds
(i.e. fraud). Once entered, property settlements are very difficult to
change.
Retirement Income
Pensions and 401K's.
Defined contribution plans (401-K's, i.e.) and defined benefit plans
(pensions, i.e.) are considered marital property and are subject to
assignment by the Court. See, e.g. Stamp v. Visconti, 51 Conn.
App. 84 (1998) (wife's 401K should have been included as a marital asset
even though completely funded by her employer). Qualified Domestic
Relations Orders ("QDRO's") are typically ordered by the court in
connection with the final decree, and when issued, requires the plan
administrator to transfer all or part of a plan's interest from one
spouse to another. If transfers are
made under a QDRO, they are not treated like withdrawals and therefore
are not subject to a penalty.
See a helpful article on types of retirement assets and QDROS posted on
a resource site for accountants.
In Bender v. Bender, 258
Conn. 141 (2001), the Supreme Court ruled that unvested pensions are marital
property and can be subject to division.
Social Security
You can collect social security based upon your divorced spouse's income
if (1) you were married for at least 10 years; (2) you have been
divorced for two years; and (3) your divorced spouse is eligible to
receive benefits. The two-year waiting period does not apply if the
divorced spouse was receiving benefits prior to the divorce. There is no
impact on the benefits of the spouse against whose account the divorced
spouse collects benefits. The right to spousal benefits is lost if you
remarry.
See Social Security FAQ from the Nolo Press.
See Section 216 of the Social Security Act, 42 U.S.C. 416.
Alimony is available to either party but neither party is absolutely
entitled to receive alimony. The basis for awarding alimony is not to
punish a guilty spouse but to continue a duty to support the other.
Beware of formulas!
Judges award alimony based upon all the
facts and circumstances of the parties and do not rely upon formulas or
rules of thumb. Many of the common formulas that parties hear about have
been repudiated by their authors. The factors the court will consider
are:
the length of the marriage, the causes for the divorce, the age, health,
station, occupation, amount and sources of income, vocational skills,
employability, estate, needs of the parties, and property distribution.
Conn. Gen. Stats. § 46b-82.
When children are involved, the court will also consider the
desirability of the custodial parent's securing employment.
The options for alimony are: (1) none, (2) $1.00 per year, (3) lump-sum
alimony or (4) periodic alimony. If the divorce judgment provides for $1.00
per year, that figure give the court the authority to modify the amount in
the future, if the legal requirements for modification are met.
"Rehabilitative alimony" is transitional support awarded to
one of the spouses during a period of education or training necessary to
achieve self-sufficiency or make up for time that the spouse has been
withdrawn from the workplace.
Because alimony is deductible to the party who pays it,
it is a device to shift the tax burden to the spouse who is likely in a
lower tax bracket. Alimony is therefore an important divorce financial
planning device.
Modifiability
Alimony can also be made non-modifiable as to amount or duration by
agreement of the parties. If the agreement or decree contains no
prohibition precluding modification, the court will have the ability to
to modify in the future based upon a substantial change in
circumstances.
Waiver of Alimony
If the parties waive their right to alimony, or if the court's judgment
contains no provision for alimony, neither party will be able to go back
into court at any time in the future to request that alimony be ordered,
even if there is a drastic change in circumstances that was not
foreseeable at the time of the divorce. Unless there is some kind of
alimony provision, the door will be closed forever.
Effect of Cohabitation on the Payment of
Alimony
In DeMaria v. DeMaria, 247 Conn. 715 (Feb. 16, 1999), the
Supreme Court (Katz, J.) ruled that a provision to terminate alimony in
the event of a recipient's cohabitation must be interpreted in
conjunction with the requirements of Conn. Gen. Stats. Section
46b-86(b). The statute allows the court to modify an alimony order on
grounds that the recipient is "living with another person"
only if the new living arrangement causes a change of circumstances
so as to alter the financial needs of that party. The Supreme Court
ruled that a trial court must evaluate the financial impact of the
living arrangement regardless of the terms of the separation agreement
and decree. A party seeking modification upon the ground of cohabitation
must therefore plead and prove "altered financial needs."
Impact of Divorce on Children
Under the best of circumstances and in the most amicable of situations,
divorce takes its toll on children. In her landmark 25-year study, The
Unexpected Legacy of Divorce, researcher Judith Wallerstein disproves
the myth that children will "bounce back" after divorce. By
re-interviewing subjects she first studied 25 years ago, she found that
the ill effects of divorce followed children into adulthood. Wallerstein
and her co-authors found that although children do learn to cope with
divorce, in adulthood they often feel that their relationships are
doomed. They seek to avoid conflict and fear commitment.
"My Life as a Game Piece" is an
article by an eighth-grader who interviewed a number of kids who spoke
about how they experienced their parents' divorce.
Another helpful article is
Helping
Children Understand Divorce [PDF]. An article published by North
Dakota State University, Talking
to Children About Divorce, makes lots of useful suggestions and
discusses common reactions and problems of kids at "ages and stages" of
development.
A brief but invaluable resources is a one-page list published by the
Academy of Matrimonial Lawyers entitled Ten
Tips for Divorcing Parents.
Print it, put it in your medicine cabinet and read it every day.
Children of high-conflict parents are especially at risk to can suffer
permanent psychological effects. Parents need to work together to
develop a co-parenting plan and strategies that minimize, rather than
maximize, the effects on children. Recommended book:
The Co-Parenting Survival Guide: Letting Go of Conflict after a
Difficult Divorce by Thayer & Zimmerman.
Elements of legal and physical
custody
There are two components to custody: legal custody and
physical custody. Legal custody relates to decision-making and
physical custody has to do with where the child lives. Sole legal
custody means that one parent will make all the major non-emergency
decisions for the child, including schooling, medical issues, religious
education, and the like. Joint legal custody, the most common
arrangement, means that the parents make all those decisions jointly.
Primary physical custody means that the child resides with one parent
primarily and the other parent has co-parenting rights and
responsibilities. Shared physical custody means that the child resides
with each parent approximately (but not necessarily) half the time.
Split physical custody means that children are split up among the
parents, i.e. one child to the mother and the other child to the father.
In issuing its orders, the Court shall be guided by the best
interests of the child, giving consideration to the wishes of
the child if the child is of sufficient age and capable of forming an
intelligent preference.
The Court may also take into consideration the causes for divorce, if
they are relevant to a determination of the best interests of the child.
Most often, however, the judges will differentiate and treat differently
the issues between the adults and children.
Connecticut has no set age upon which a child can state a preference as
to which parent she/he would like to live with. A court will consider a
child's preference and take into consideration the child's age and the
overall circumstances. The child's preference is not binding upon the
court. Parents should never make demands on children to make a
choice or talk to them about which parent they would prefer living with.
Such conversations are emotionally disturbing to a child. A child's
input should be obtained very carefully. It is usually best for such
discussions to take place in a safe environment for the child in a
session conducted by a professional. Parents should also be aware that
children tend to tell the parent asking the questions what that parent
wants to hear.
Child support is calculated using
the Connecticut Child Support Guidelines (CSG). Conn. Gen. Stat. §46b-84
(Aug. 1999). Under the guidelines, the amount of total support is calculated
and then each parent's portion of the total support is calculated pro rata
according to their respective incomes. The Guidelines provide that judges
have the discretion to deviate from the guideline amounts in certain
specified situations. For instance, the Court may take into consideration a)
the educational needs of the parents; b) the needs of other children
supported by the non-custodial parent; c) extraordinary visitation expenses;
and d) whether a deviation should be allowed due to shared or split custody
situations.
The Guidelines provide that the
parents shall also share unreimbursed medical expenses and work-related day
care costs. These expenses are shared pro rata according to income after
adding in the child support paid to the receiving parent.
New Spouse or Domestic Partner's Income.
The guidelines provide that
the court cannot consider a new partner's income, but can consider a new
spouse's contributions or gifts as a deviation criteria, "if it is found
that the parent has reduced his or her income or
has experienced an extraordinary reduction of his or her living expenses as
a direct result of such contributions or gifts." The authors of the
Guidelines intended to incorporate the holding of the Supreme Court's March
1998 decision in
Unkelbach v.
McNary, 244 Conn. 350, 710 A.2d 717 (1998). In
Unkelbach, the court ruled that a spouse or domestic partner's
contributions toward living expenses could be taken into consideration by
the court. Under the Unkelbach approach, the domestic partner's
income is therefore not included in the calculations, but the partner's
contributions to living expenses would be treated as gifts.
Other Reasons to Deviate from
the Guidelines. The court must articulate a specific basis for deviation
based upon the
guidelines; for example, other assets available to a parent, earning
capacity, extraordinary expenses for the care of a child, extraordinary
parental expenses (significant visitation, job or medical medical expenses),
needs of a parents other dependents, coordination of total family support
(division of assets, alimony and tax planning considerations).
Child Support and Shared and Split Custody
Under the Connecticut Child
Support Guidelines, there is no presumption that shared custody will either
reduce or eliminate the need for child support. Shared custody is one of the
deviation criteria recognized by the Child Support Guidelines. The
guidelines provide that deviation is warranted only when (1) the arrangement
substantially reduces the custodial parent's expenses or substantially
increases the non-custodial parent's expenses for the child and (2)
sufficient funds remain for the parent receiving support to meet the basic
needs of the child after deviation. "Shared physical custody" is defined as
a situation where the non-custodial parent exercises care and control of the
child "for periods substantially in excess of a normal visitation schedule."
A common misunderstanding is that
parents do not have to pay child support in shared parenting situations.
Shared custody means that both parents share all parenting responsibilities,
including financial responsibilities. Each parent is therefore required to
provide a portion of all the housing, food, clothing, education, medical,
and social expenses of the child. This can be accomplished, for example, by
setting out specifically the terms of the shared financial responsibilities
in the Judgment (decree) or by pegging one parent's share of the expenses to
the Child Support Guidelines. Whether the shared financial arrangement
between the parties is flexible or fixed will depend on the particular
circumstances of the parties and how well they work together on parenting
and financial issues.
-
Prior to October 1, 2002:
The court has no authority to order child support past the age of 19. If the
parties provide for post-majority support (i.e. college expenses) in their
written separation agreement, the court will enforce that agreement. For
orders entered after October 1, 2001, Judges have the authority to modify
post-majority support agreements like any other order of child support.
-
After October 1, 2002:
The new law, "Educational Support Orders."
Conn. Gen. Stats. 46b-56c, gives Judges the authority to order
that parents pay as child support, college education costs. The bill would
apply to orders entered by the court on or after October 1.
The bill:
-
requires that the court makes a determination that but for the divorce, the
family would most likely have supported the college education of the child,
-
requires that the court take in consideration all the circumstances of the
parents and the child before making an order,
-
requires that the amount ordered is capped at the "UConn equivalency";
namely, tuition, room and board and costs of a Connecticut resident at the
University of Connecticut,
- requires the order shall terminate on
the child's 23rd birthday,
- requires that the child meet
requirements in terms of choice of study, academic standing and
cooperation with parents,
-
allows for payments to
be made directly to the school, parent, or child
-
allows for
modification
-
provides that the
child does not have the right to sue his parents for educational support
based upon the statute,
-
does not provide for
graduate or post-graduate degrees
-
applies to cases in
which an initial order for child support is entered after Oct. 1, 2002
Wage Execution/Garnishment
Conn. Gen. Stats. 52-362(b) makes wage executions (an automatic deduction
from wages by the person's employer) mandatory in every case in which the
court makes financial orders. The provision may be waived if the parties
agree in writing that the court may order a "contingent" (backup) wage execution.
With a contingent order, the person receiving support can get a wage
execution if the person paying support fails to pay or to make payments on
time.
Earning Capacity
In making a determination as to alimony and child support, a court has the
discretion to make its orders based upon the "earning capacity" as opposed
to the actual earnings of a party. This prevents persons involved in divorce
or child support actions from becoming deliberately unemployed or
under-employed in order to affect the outcome of the court decision.
Relocation of a child by one parent is an especially difficult problem for
parties and courts. Read a summary and
analysis of the Connecticut Supreme Court's Ireland v. Ireland
decision.
Parenting Education
Participation in a parenting education program is required under Conn. Gen.
Stats. §46b-69b. Parenting education involves attending a program of classes
by a provider approved by the Court. Brochures and forms are
available in the clerk's office of the J.D. (county) courthouses and are
also available on line. Link to
Family Court Forms. The
course costs $100 per parent and consists of six hours of classes at the office of the
approved provider. The parties must bring the sign certificates of
completion with them to court on the day that they request the court grant
the divorce. Most parents report that the classes are very beneficial and
are especially helpful if taken at the beginning of the divorce. If you have
children, take a minute to read Ten Tips for
Divorcing Parents.
Under Connecticut law, persons with significant ties to children have
visitation rights. Link to article,
Visitation by Grandparents and Others - Non-traditional Family Issues by Sue
Smith. Recently, the Connecticut Supreme Court ruled that
grandparents and others must demonstrate that they have a "parent-like"
relationship with the child and that the child will suffer harm if
visitation is denied. This is a heavy burden of proof and it will have a
significant impact on the ability of third-parties to obtain visitation
orders.
The Court always retains jurisdiction over issues relating to the custody
and well-being of minor children. Any orders relating to child support can
be modified upon a showing of a "substantial change in circumstances." Conn.
Gen. Stat. §46b-86. When reviewing child support orders, the courts use a
benchmark of a 15% deviation from the guidelines to determine whether a
change in circumstances qualifies as "substantial".
As to alimony, the parties can restrict the right of the Court to awards by
making them "non-modifiable" as to either amount or duration of payments (or
both).
Once marital property is distributed, it is very difficult to modify an
agreement or order and obtain a redistribution. Property settlements between
parties are usually final as of the date of the divorce and can only be
revisited if there are specific special circumstances (i.e. fraud, duress,
mutual mistake) that are brought to the court's attention within a specific
time period.
A party can be found to be "in contempt" for willfully failing to comply
with an order of the court. A Motion for Contempt is the mechanism by
which a party raises the other party's non-compliance to the court and the
mechanism by which the family court enforces its orders. A party found to
be in contempt can be required to pay the other party's attorneys' fees.
"Self Help" In
Eldridge v. Eldridge, 244 Conn. 523 (1998) the Supreme Court
(Justice Katz) demonstrated the degree to which it disfavors "self help". In
Eldridge the husband discovered years after the fact that his wife was
earning income that entitled him to an offset from his alimony payments.
Figuring that he had actually overpaid his wife, he stopped making payments.
His wife filed a motion for contempt. Even though he was entitled to a
$10,000 credit, the Supreme Court found that it was appropriate to find him
in contempt because he did not receive an order from the court before
reducing or suspending payments.
In Sablosky v. Sablosky, 258
Conn. 8 (2001), the Supreme Court ruled that a party who fails to comply
with a judgment, even though a provision may be deemed ambiguous, can be
held in contempt of court.
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Important Note: Tax issues are complex and difficult to
generalize. I.R.S. regulations change frequently. The information
in this article is provided as a starting point. Please read the
linked publications to make sure that the general statements apply
to your tax situation. Please discuss the tax impact of your
divorce issues with a tax professional.
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Link to IRS Publication.
Link to PDF File
Publication 504 "Divorced or Separated Individuals."
Filing Status:
Unless the parties are married on the last day of the tax year (i.e.
December 31st), they are not eligible to file a joint tax return for
that tax year. If the parties are married on the last day
of the tax year, they are eligible to file married (jointly) or
married (singly).
Alimony is treated as taxable income for the receiving spouse
and is a deductible expense for the payor spouse.
Link to IRC Section 71.
Exemptions and Deductions for Children.
The dependent child exemption is assignable from the primary
custodian of the child if the custodial parent signs a Form 8332
(release of exemption).
Link to IRS
Publication 503: Dependent Child Exemption. The child care
(i.e. day care) credit is not usually assignable and must stay with
the parent with whom the child primarily resides. A separate tax
credit is the Child Tax Credit, which can be claimed by anyone who
is entitled to "claim a child as a dependent."
Property Transfers. Transfers of property (including the
marital residence) from one spouse to the other "incident to a divorce" are
generally non-taxable events. Spousal transfers incident to divorce are
treated like gifts so the spouse receiving the property receives the
"adjusted basis" (baseline valuation) of the spouse transferring the
property for the purpose of figuring gains and losses in the future.
IRC Section 1041.
Link to IRS Publication 504: Transfers Between Spouses.
Sale of Principal Residence. Pursuant to the Tax Reform Act of
1997, there is a $250,000 exclusion of capital gain per spouse ($500,000 per
couple) on a principal residence sold after May 6, 1997 provided that you
resided for the residence for 2 out of the last 5 years (or less if you
rolled in the gain from a prior principal residence). This is not a "one
time" exclusion as was provided under prior law; you may apply the exclusion
to one home sale in a two-year time period.
Link to IRS
Publication 523 Sale of Your Home, Excluding the Gain.
Spouses have individual, not joint, interest in tax refunds.
Unless otherwise agreed to, the overpayment is allocated according to the
amount of tax paid by each spouse. IRS Revenue Ruling 74-611.
"Innocent spouse" rules allow spouses to apply to the IRS
to disengage from joint tax returns obtain protection from joint liability
(civil and criminal) if they suspect the other spouse has not been
honest in filing in joint returns. The
Innocent Spouse Rule of the IRS Restructuring and Revision Act of 1998
provides that where:
-
The parties have filed a joint return;
-
That as a result of the gross misstatements of one spouse, there is
an understatement of tax due;
-
The innocent spouse can demonstrate that he or she signed the return
not knowing about the understatement;
-
It would be inequitable to hold the innocent spouse liable for the
deficiency taking all the circumstances into consideration.
There are more detailed explanations as to what types of
misrepresentations and what constitutes an understatement contained in
the rules. There are time limitations for filing with the IRS for
innocent spouse protection.
Link to IRS
Publication 971: Guidelines (Acrobat pdf file).
Link to an article describing the new rules.
Copyright © Susan K. Smith. Last revised
08/30/2007.
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