Posted On: June 29, 2011

Who Gets Custody of the Tax Return?

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The Gasper Law Group, PLLC

What happens to your income taxes both during and after a divorce is a common point of confusion. This article is not intended to provide you with specific tax advice; we are lawyers, not accountants. The purpose of this article is to describe how income taxes are treated by the family courts so that you may then arm yourself with that information when you have your taxes prepared or prepare them yourself.

It’s my money and I need it now!

A tax refund from any year you were married is considered to be a marital asset subject to division by the courts. Frequently this time of year, we see one party or the other file Married Separate and spend what they consider to be “their” refund. This is a potentially very risky move on your part. It is quite common for courts to require the parties to file an amended return in order to result in a larger refund. The party who files on their own risks having to repay funds to the marriage that have long since been spent and possibly to pay the costs associated with amending a return or other penalties.

As a general rule, it is rarely a good idea to act unilaterally when it comes to a joint marital asset. If you feel you have specific circumstances, such as a spouse who is delinquent in their taxes, bring the matter to your attorney’s attention for further advice.

The kids live with me, why does my ex get to claim them?

Colorado courts divide the dependency exemptions based upon financial support, not based on where the children primarily reside. So long as a party is paying child support, they are providing financial support and are therefore entitled to their share of the dependency exemptions. What exactly a parent’s “share” of the exemptions equals is a question for the court to determine.

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