Generally, the Court cannot order married couples to file jointly. If one spouse does not agree to file jointly, he or she cannot be forced.
Sometimes one spouse, in an attempt to frustrate his or her mate during divorce, will file first as married filing separately. If there are children, the spouse will typically claim them as dependents too. Frequently, he or she receives a refund and refuses to share it with his or her partner. Divorce lawyers see these scenarios play out every tax season.
Often, the other spouse’s lawyer files a Motion to Compel Filing of Joint Tax Returns. Again, the Court does not have the authority to do that. A more appropriate request is to ask that the refund be split and ask that whatever liability and penalties are incurred as a result of the single filing be allocated entirely to the single-filing spouse. The Court does have authority to order the division of the marital estate, which includes any asset or liability, such as a tax refund and tax debt.
The spouse who filed married separately may agree to file a corrected return. That may resolve the entire issue. The parties would have to pay back any refund received from the single filing and then file jointly.
Before a spouse files married separately, he or she must examine the big picture and consider the possible repercussions.