Most married taxpayers choose to file taxes jointly due to certain benefits associated with this filing status. When a couple chooses to file a joint tax return, both taxpayers are jointly and severally liable for the tax and any additions to tax, interest, or penalties that arise from joint return, even if the couple later separates or divorces. Both joint and several liability means that each taxpayer is legally responsible for the total liability. Therefore, both spouses on a married filling jointly return are usually held liable for all the tax that is due. This is the case even if one spouse made all the income or claimed deductions or credits. This is also the case in the event that a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns. A situation may occur however, where a spouse gets the other spouse into a substantial amount of debt. Upon separation or divorce the innocent spouse discovers that they are in a financial crisis and wishes to alleviate some of the accumulated debt. In cases such as these, a spouse can be eligible for relief from being jointly and severally liable.
Types of Relief
There are three types of relief from the joint and severally liability of a joint return. These three types are as listed:
It’s important to note that an individual seeking innocent spouse relief or separation of liability relief must request their relief no later than two years after the date the IRS first attempted to collect tax from them. An individual wishing to apply for equitable relief, must request relief during the period of the time the IRS can collect the tax from them. In the event that a person is looking for a refund of tax that they paid, then they are required to request it within the statue period for seeking a refund. This is generally three years after the date the return is filed or two years following the payment of tax, whichever is later. Refunds are not available under separation of liability relief.
Requirements for Relief
To seek innocent spouse relief, separation of liability relief, or equitable relief, an individual should submit to the IRS a completed form 8857. Request for Innocent Spouse Relief, or a written statement containing information required on Form 8857 which is signed under penalties of perjury. The IRS is required to notify the spouse you filed jointly with and allow him or her to provide information for consideration. Finally, in order to qualify for innocent spouse relief, separation of liability relief, and equitable relief an individual must meet all of the qualifications.
- Innocent Spouse Relief
- Separation of Liability Relief
- Equitable Relief
If you are considering separation and divorce, emotional issues aside, there are a number of legal issues you need to understand and plan for. In North Carolina, to obtain an absolute divorce, you are required to live separate and apart for a year and a day. During this period of separation, you and your spouse must continuously live separate and apart in different residences – different bedrooms within the same house does not count. Additionally, at least one spouse must have lived in the state for at least six months prior to filing for the divorce.
Before obtaining your divorce, however, it is very important that you and your spouse have divided up your property, and determined any potential spousal support. Any claim for equitable distribution, or the division of marital assets and debts, must be made before the divorce is finalized, or a court will not have jurisdiction over the claim. This is also true for spousal support. If a claim for alimony is not made before the divorce is finalized, the claim cannot be later asserted. The court would not have the authority to enter such an order.
Due to this, and in lieu of litigation, it is very common for parties to enter into a separation agreement before they are divorced. Separation agreements outline the terms of a separation, and most commonly cover property and debt division, and spousal support. Separation agreements may also discuss child custody and child support. Typically, however, it is not best practice to put child custody and child support in a separation agreement, versus a consent order. A consent order is enforceable by contempt, whereas a separation is enforceable by breach of contract. For most parties, it is beneficial to enter into a separation agreement because it saves them money (reduces attorney fees and litigation expenses), and gives them more control over what is in the agreement (the parties can determine to terms of the agreement versus a judge making the decision).
If you are considering separation and divorce, contact Adkins Law to arrange a consultation. Whether you decide to hire a family law attorney to guide you through your divorce, a consultation with an attorney can at least provide you with information on your rights, and help you make an informed decision on how to proceed. Adkins Law is located in Huntersville, and primary serves Mecklenburg County and the Lake Norman area.
You are legally separated from your spouse if you move out of the marital residence with the intent of remaining separate and apart. Once you remain separate and apart from your spouse for a year and a day, you are eligible to file for an absolute divorce. Once the absolute divorce is granted, all bonds of marriage are terminated between you and your spouse. If you need to speak to a family law attorney in regards to a separation and / or divorce, contact Adkins Law. Adkins Law has locations in Huntersville and south Charlotte.
What is the difference in being legally separated and getting a divorce? When one spouse moves out of the marital home with the intent of remaining separate and apart, the couple is legally separated. In North Carolina, however, you must remain continuously separate and apart for a year and a day in order to file for a divorce. Once your divorce is granted, the bonds of matrimony are broken, and your marital status reverts to single. If you need to speak with a family law attorney in regards to seeking information on separation and divorce, contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne.
1) How long do we have to be separated before we can file for divorce in NC?
Under North Carolina General Statute (N.C.G.S.) § 50-6 provides that either party may apply for divorce but only “if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six (6) months.”
2) How long will divorce process take once the complaint is filed?
It depends each county in North Carolina is different and has its own local rules and procedures when processing a complaint for absolute divorce. When the plaintiff files a complaint for absolute divorce, a defendant is entitled to 30 days to respond to the lawsuit. A defendant is may ask the Court for additional time in which to respond and in most cases a Court will allow a permit an additional 30 days for the defendant to respond to the complaint. If a defendant fails to respond to the complaint within 30 or 60 days if applicable, the plaintiff is entitled to proceed with their claim for absolute divorce. In Mecklenburg County, unlike some other counties, no court appearance will be required by either party for a Court to enter a judgment of absolute divorce.
3) What factors does the court look at in determining alimony?
Under N.C.G.S. § 50-16.3A(a), “the court shall award alimony to the dependent spouse...upon a finding that the other spouse is the supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section.”
N.C.G.S. § 50-16.3A(b) “In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The marital misconduct of either of the spouses. [The court will consider all evidence of martial misconduct that has occurred during the marriage and prior to the date of separation.];
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.”
4) What if I am military and live out of state? Can our divorce still be filed in NC?
Yes, as long as one party resides in North Carolina for six months. The divorce will have to be filed in the county the NC resident resides in.
5) Is spousal support available while divorce is pending in court or only after the divorce has become final?
It is up to the court to order that one spouse provide support to the other during the pendency of the divorce action and/or after the divorce has become final. Also, support that is awarded pending the final decree of divorce is not to extend beyond the period necessary for the prosecution of the divorce action.
6) When is considered to be abandonment by spouse?
Abandonment occurs when a spouse intentionally moves out of the martial home with the intent to remain permanently apart without the consent of the other spouse, and without provocation by the other spouse.
7) Is your spouse entitled to alimony if they cheated on you?
No. Under N.C.G.S. § 50-16.3A(a) provides that a spouse that is found dependent by the court is not entitled to alimony if he or she has had sexual relations with another person that is not their spouse at any time prior to the date of separation.
8) What if my spouse does not agree to the divorce, can I still go forward with the divorce?
Yes. You can obtain a divorce decree whether your spouse agrees with it or not, as long as you and your spouse have been separated for one-year and one of you has been a resident of North Carolina for six-months prior to the filing of this divorce action.
9) What are the types of divorce that NC recognizes?
North Carolina is a “no-fault” state which means that neither party has to prove fault of the other in order to file or be granted a divorce decree, you are only required to be separated for one-year and one of the spouses must have resided in NC for six-months prior to filing for divorce. Further, North Carolina recognizes two types of divorces: (1) “absolute divorce” and (2) “divorce from bed and board.”
(1) “Absolute divorce” is like a no-fault divorce, either party can obtain, once you and your spouse have lived separate and apart for one-year.
(2) “Divorce from bed and board” is not technically a divorce but rather a judicially authorized legal separation. There are six grounds for this type of divorce based on injury to the party filing for divorce as provided under N.C.G.S. § 50-7. “The court may grant divorces from the bed and board on application of the party injured…in the following cases if either party: (1) Abandons his or her family, or (2) Maliciously turns on the other out of doors.
(3) By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies available under N.C.G.S. § 50B-1.
(4) Offers such indignities to their spouse as to render the condition his or her condition intolerable and life burdensome.
(5) Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of the spouse burdensome.
(6) Commits adultery.” [NCGS § 50-7]
10) Does North Carolina recognize common law marriage?
No, North Carolina does not recognize common law marriage. If, however, you moved to North Carolina from a state recognizing common law marriage, you still may need to file for an absolute divorce.
If you need to arrange a consultation with a family law attorney concerning separation and/or divorce, contact Adkins Law. We have locations in Huntersville and Ballantyne for your convenience.
If you are considering a divorce you will want to be proactive and make sure you are taking the right steps to ensure a positive outcome. Contacting an attorney is a good first step. Your attorney may recommend that you seek marriage counseling even if you don’t think your marriage can be saved. A divorce is a major life event and a counselor can help you navigate the emotional ups and downs you will likely experience. Your attorney will discuss the laws specific to your state and the steps that you should take to ensure the most favorable outcome to your divorce proceeding.
STAY IN YOUR HOME
Until you speak with an attorney, you should not move out of your home unless it is an abusive situation. In situations of abuse, you should always put the safety of you and your children first. Leaving your home without reason, could be considered abandonment and could jeopardize spousal claims for support. In NC, abandonment means that a spouse has moved out with the intent to cease co-habitation. Abandonment can also impact the custodial rights of the abandoning spouse. By leaving the children with your ex, you are essentially saying that they are capable and fit to raise the children. In addition, if you leave, you may be unable to return to the house until the property has been divided which could take a year or even more in some cases.
SAFEGUARD YOUR ASSETS
An attorney can guide you on how to best protect your assets. You will want to take possession of certain types of assets like cash, collectibles, jewelry, etc. that your spouse might try to liquidate. Your attorney might also suggest closing joint bank accounts and credit cards.
NC DIVORCE LAW
Some states are “Fault” states meaning that the judge will consider the actions of the “guilty” spouse to determine if there are grounds for divorce. In “No Fault” divorce states the judge does not consider the actions of the spouses. All that is required is that one party wishes to end the marriage. NC is a hybrid state – judges can consider marital misconduct or “incurable insanity” but can also dissolve a marriage if one spouse has determined the marriage can’t be saved.
WHAT TO EXPECT
A No-Fault divorce in NC requires two things. First, you must live separate and apart from your spouse for one full uninterrupted year. Second, at least one of you must have lived in NC for the six month period prior to filing the divorce papers.
Adkins Law has offices in Huntersville and Ballantyne. If you need to schedule an appointment to meet with a divorce attorney, contact Adkins Law.
Need to speak with a family law attorney? Contact Adkins Law. Adkins Law provides legal representation for family law matters such as separation, divorce, child custody, child support, equitable distribution, and spousal support. We have locations in Huntersville and Ballantyne for your convenience.