Law-Forums.org

[demarco]

My ex and I split in 2011, started the divorce precedings and our divorce was final in February of 2012. We filed our income taxes for the 2011 as married\joint, since we were still married as of 12/31/2011. We found out that we owe 8700 in both federal and state combined. We didn't include it in the divorce decree since we started the preceding before tax season and didn't think we were going to owe that much. So since our divorce is final, I cannot go back and include it in our divorce decree. I have asked him to help me pay the taxes and he is stating he won't pay a dime. I HAVE to pay the balance in full as of 4/17/2012 due to an open bankruptcy that I am in and I am not allowed to incur any additional balances on federal or state taxes. I am going to pay this in full.

My question is if I can take him to small claims court to get him to pay half the taxes back to me. Would this be a legitimate case? Does anyone have any experience with this?

[fenwick]

If this was not addressed in your divorce decree, your only option to force him is to get the decree modified. Shame on you and your attorney for not addressing that matter!

The IRS will take collection actions against both of you. Since it's a joint return, the debt is jointly owed and they don't really care from whom they collect. Joint does not mean a 50-50 split, it means that you both owe the ENTIRE amount.

Since this is a joint debt, the odds of a successful suit in small claims court are close to zero.

[ryscford]

You can sue anybody you want. If I were the judge I'd give you your half.

[chatima]

It would be much more legitimate to sue your attorney for negligence.

[patwin87]

The IRS will look at both of you as the source of paying the tax due. Do not pay more than your share of tax's. Since you file as MFJ, it is jointly from both of you, thus you and him responsible 50% each. To make it easy for you, DO NOT PAY now till this matter resolved. You must file 1040X (amendment) return by adding new form to the return which is titled: INJURED SPOUSE (Form 8379 (Rev. December 2010)
Please download the form and its instruction, simply write on the 1040X form explanation like this: I file with my X husband jointly return, I am responsible about 50% only. Please split the amount between us. Sign and send it to them. The chances is good to pass since the amount should be 50/50 between both of you. Also, be smarter than him, plan as of today by changing your exemptions of w4 form. Include as much exemptions so you pay ONLY from your paychecks what you may owe at the end of the year. If you pay more and you are due a refund, the IRS may intercept your refund to pay off what your x should be responsible for (half of 2011 tax's)
Read the following carefully:http://www.irs.gov/instructions/i8379/ch01.html

Good luck

[adamka]

Go to your divorce attorney
this is a post-decree matter stemming from your time married
you and attorney should have anticipated this issue. . . .it is a JOINT debt
go back to court

[ashbey15]

Tax Chopper's answer is very, very wrong and will subject you to some severe penalties and interest.

Joint liability means that both of you are 100% liable for full amount. IRS does not care who pays and will NOT limit themselves to just 50% from you.

In fact IRS is not bound by divorce decree either - that merely allows the paying party to sue the non-paying party in state court to recover the taxes.

[barraq]

joint return, you are both equally liable for the taxes
you might prepare a dummy 2011 married separately and see who really owes the money, pay your portion and let them go after him for his portion