Does my wife have any rights to our income tax return?

Question:

My wife and I are still married but considering divorce. This past year she worked a low-paying part-time job for only a few months.

Does she have any legal rights to our income tax return if she worked and earned so little?

Answer:

The income tax return would likely be considered marital property and the division of your tax return depends on many circumstances, beginning with what jurisdiction you live in.

There are two legal theories that govern how marital property is divided: community property or equitable distribution. Ohio law, where you are writing from, follows the theory of equitable distribution. I do not practice in an equitable distribution state, so I can only answer your question with respect to generalities.

In Ohio, each spouse is considered to have contributed equally to the production and acquisition of “marital property.” The law requires that the division of property must be equal, unless such a division would be inequitable. In that case, marital property will be divided equitably instead of equally.

In making a division of marital property and determining whether to make an award and the amount of any distributive award, the court shall consider all of the following factors:

  • The duration of the marriage;
  • The assets and liabilities of the spouses;
  • The desirability of awarding the family home, or the right to reside in the family home for a reasonable period of time, to the spouse with custody of the children of the marriage;
  • The liquidity of the property to be distributed; the economic  desirability of retaining intact an asset or an interest in an asset;
  • The tax consequences of the property division upon the respective awards to be made to each spouse;
  • The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;
  • Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; and
  • Any other factor that the court expressly finds to be relevant and equitable.

You could make the argument that the income tax return should not be divided equally because your wife only worked part of the year; instead it should be subject to equitable division.

However, the court may consider her non-monetary contributions to the marriage, i.e., that she was the caretaker for the children.

Also keep in mind that if you file an action for divorce and cannot immediately agree on how the tax return may be divided, the court could order the money to be placed in trust to become part of the ultimate property division, which could be several months away.

The outcome depends on the facts of your case and the laws in your jurisdiction. I suggest that you speak to an attorney in your jurisdiction.

Cordell & Cordell has men’s divorce lawyers located nationwide.

 

Trisha B. Festerling is an Associate Attorney in the Milwaukee, Wisconsin office of Cordell & Cordell where she practices family law exclusively. Ms. Festerling’s practice is focused on men’s divorce, child support, child custody, paternity and modification. She is licensed in the state of Wisconsin. Ms. Festerling received her Bachelor of Science degree in Criminal Justice with a focus on Political Science, Magna cum Laude, from the University of Wisconsin – Milwaukee. She received her Juris Doctor from Regent University School of Law in Virginia Beach, Virginia.

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