Question:
Are tax returns considered marital property?
My wife is planning on filing her taxes and getting the tax money before our divorce is finalized, and I know she won’t give me any of the refund if she can help it.
Answer:
In Michigan, where I practice, all income that was earned during a marriage is marital property. In essence, a tax refund is a refund of income that was overpaid to the government for taxes. If this income was earned during your marriage (which should be the case because you are not divorced yet), the tax return would be marital property.
Property division in Michigan follows the rule of equitable distribution. This means that rather than dividing the property equally, property will be divided “equitably” or fairly. There is a presumption that the division will be roughly equal.
There are numerous factors that courts consider when dividing property, including: the source of the property; contribution toward its acquisition; the number of years of married life; the needs of the parties and the children; the earning power of the parties; the cause of the divorce; general principles of equity; and any other factor the court deems relevant.
There is no set number or amount for what portion of the tax return you may be entitled to. If you and your wife cannot reach an agreement regarding how the money will be distributed, the court will consider it part of the marital estate.
The court can then award it in whatever portion it feels is equitable, in light of the factors listed above and the other property distribution in your case.
If you have an immediate need for the funds, you may want to petition the court for a ruling on how the money should be distributed. The judge may decide at that time, or ask that the funds be held until all property is divided, to eliminate any temptation to spend the money.
Although I practice law in Michigan, I cannot give you legal advice without thoroughly reviewing your case. Do not rely on this information as establishing an attorney-client relationship. Contact an attorney immediately for assistance. Cordell & Cordell does represent men in divorce in Michigan.
Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude.
