Applying US citizenship being seperated

[kkk1 42]

Can someone apply US citizenship based on 5 years rule and divorce is in process, but a spouse who is US citizen is filling IRS taxes jointly and they are due. So, is it still safe to apply for Citizenship?

[NigeriaorBust 4,087]

You taxes need to be up to date or at least on a payment plan

[kkk1 42]

You taxes need to be up to date or at least on a payment plan

So is there any way that the spouse who is applying for Citizenship can amend the IRS Tax and make it pay as single.

Does that person has to pay pending taxes too which other spouse had not paid, before applying for citizenship??

[Villanelle 4,122]

Slow down...

Your federal income tax filing status is set by your marital status on the last day of the tax year.

So, if you are still married on December 31st, then you are considered married for the entire year. If you are divorced on December 31st, then you are considered divorced for the entire year.

If you’re legally divorced, you must file as single or head of household. But, if you are still legally married, the IRS always allows you to file either jointly or separately.

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So Im assuming we are talking about the tax year 2015 that will need to be filed by April 2016 right? You say divorce in progress so taking from the above if it is NOT finalized by Dec 31 you are still considered "married" and can file jointly or separately. Please note separately when married is filed as head of household or married filing separately (not single).

If the divorce is finalized by Dec 31 then you are legally divorced the whole year and will file as single or head of household.

-

As for pending taxes---? What are we talking about here? Taxes due from 2014, 2013, 2012 etc? If so and they were filed as a joint return then yes the tax liability for those years are both parties responsibility. There is NO WAY to go back and undo a return filed jointly to two separate returns. (Oddly you can amend separate return to a joint one though)

And like stated above for USCIS purposes a payment plan is acceptable for back taxes, they dont have to be paid in full. But I strongly suggest if there are back taxes owed to discuss with the divorce attny (if there is one) as it should be worked into the divorce.

(This isnt for you is it? You are no where near the 5yr mark yet!)

[kkk1 42]

Slow down...

Your federal income tax filing status is set by your marital status on the last day of the tax year.

So, if you are still married on December 31st, then you are considered married for the entire year. If you are divorced on December 31st, then you are considered divorced for the entire year.

If youre legally divorced, you must file as single or head of household. But, if you are still legally married, the IRS always allows you to file either jointly or separately.

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So Im assuming we are talking about the tax year 2015 that will need to be filed by April 2016 right? You say divorce in progress so taking from the above if it is NOT finalized by Dec 31 you are still considered "married" and can file jointly or separately. Please note separately when married is filed as head of household or married filing separately (not single).

If the divorce is finalized by Dec 31 then you are legally divorced the whole year and will file as single or head of household.

-

As for pending taxes---? What are we talking about here? Taxes due from 2014, 2013, 2012 etc? If so and they were filed as a joint return then yes the tax liability for those years are both parties responsibility. There is NO WAY to go back and undo a return filed jointly to two separate returns. (Oddly you can amend separate return to a joint one though)

And like stated above for USCIS purposes a payment plan is acceptable for back taxes, they dont have to be paid in full. But I strongly suggest if there are back taxes owed to discuss with the divorce attny (if there is one) as it should be worked into the divorce.

(This isnt for you is it? You are no where near the 5yr mark yet!)

No no this not for me. Thanks a lot damara. In short the application for citizenship will be affected due to previous years unpaid taxes because of joint filling;right?

Hence; before applying citizenship one has to pay due taxes from previous year even though the divorce is pending and no way other spouse would like to settle down the taxes who is the one responsible to paying taxes, due to difference and divorce process.

In this case, if spouse wants to proceed with citizenship application, how is it possible. Is there any way to apply citizenship with explanation that since the divorce is pending and filling has been done jointly, previous year taxes are due and other person is responsible to pay it and it will be decided at the time of finalizing divorce??

Edited December 14, 2015 by kkk1

[Villanelle 4,122]

In short the application for citizenship will be affected due to previous years unpaid taxes because of joint filling;right?

Yes. If there are unpaid taxes because of a joint returned filed- technically both parties are responsible for them.

According to the IRS:

Many married taxpayers choose to file a joint tax return because of certain benefits this filing status allows them. When filing jointly, both taxpayers are jointly and severally liable for the tax and any additions to tax, interest or penalties that arise from the joint return even if they later divorce. Joint and several liability means that each taxpayer is legally responsible for the entire liability. Thus, both spouses on a married filing jointly return are generally held responsible for all the tax due even if one spouse earned all the income or claimed improper deductions or credits. This is also true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns.

There are several forms of relief available (that I suppose if you were able to file you could present to USCIS) However on the surface none seem to apply to this situation.

1. Innocent Spouse Relief provides you relief from additional tax you owe if your spouse or former spouse failed to report income, reported income improperly or claimed improper deductions or credits.
2. Separation of Liability Relief provides for the allocation of additional tax owed between you and your former spouse or your current spouse from whom you are separated when an item was not reported properly on a joint return. The tax allocated to you is the amount for which you are responsible.
3. Equitable Relief may apply when you do not qualify for innocent spouse relief or separation of liability relief for something not reported properly on a joint return and generally attributable to your spouse. You may also qualify for equitable relief if the amount of tax reported is correct on your joint return but the tax was not paid with the return.

Like I said Im assuming none of the above occurred and it was just the return they both prepared and signed that has a balance due.

Also this line here-

explanation that since the divorce is pending and filling has been done jointly, previous year taxes are due and other person is responsible to pay it and it will be decided at the time of finalizing divorce??

No there are no explanations. They (USCIS) want to see its 'handled'. So if you were to file for relief its not really an explanation but proof its handled (by the IRS). The other half f your sentence isnt logical. You say the other person is 'responsible' to pay like its already set/decided. But actually its not. As you said it will be decided through the divorce.

Another thing to take note of is the mentioning of divorce in the above. The IRS does NOT relieve one spouse from the balance due because they have a divorce agreement showing one spouse is going to pay. So no IRS 'clearance' no USCIS 'clearance'.

The only solution for someone in this case is to either wait until the taxes have been paid (which if you are waiting on the other side to do it on their own you may wait a long time/ ideally you would want the divorce to include a statement that says they must be paid by X date)

- or pay it/make a payment plan with IRS and have that reflected in the divorce. I know that stinks and some people can not afford to lay out X amount in a lump sum or payments but there is no other way. If money is an issue you have to realize divorce is like each side has a column and things get added and subtracted as you separate things. Just because you (potentially) laid out 5k to the IRS- doesnt mean you will be getting a check back from the other side at the divorce. They can decide the car is worth 10K and if your side wants to keep it you owe the other side 5k. Since you paid the taxes for 5K (and its decided its the other sides responsibility)- its even. You would theoretically end up with the car and no return of the tax money you laid out.

[Villanelle 4,122]

Hmm well actually "Equitable Relief" may be possible when I look at it again... It depends on a lot of factors. Some of which you havent disclosed here. Theres a lot to read here. I cant go through it all so read if over and if you have any more questions about a specific part- ask.

you must meet all of the following threshold conditions. In order to be considered for equitable relief from liability for tax attributable to an item of community income, you must meet all of the following threshold conditions except for items 1 and 2.

1. You are not eligible for innocent spouse relief or separation of liability relief.

2. You filed a joint return for the tax year(s) at issue.

3. You timely filed your claim for relief. See When To File Form 8857 , earlier.

4. You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. A fraudulent scheme includes a scheme to defraud the IRS or another third party, such as a creditor, former spouse, or business partner.

5. Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. SeeTransfers of Property To Avoid Tax, earlier, under Separation of Liability Relief.

6. You did not knowingly participate in the filing of a fraudulent joint return.

7. The income tax liability from which you seek relief is attributable (either in full or in part) to an item of your spouse (or former spouse) or an unpaid tax resulting from your spouse’s (or former spouse’s) income. If the liability is partially attributable to you, then relief can only be considered for the part of the liability attributable to your spouse (or former spouse). The IRS will consider granting relief regardless of whether the understated tax, deficiency, or unpaid tax is attributable (in full or in part) to you if any of the following exceptions apply.

   1. The item is attributable or partially attributable to you solely due to the operation of community property law. If you meet this exception, that item will be considered attributable to your spouse (or former spouse) for purposes of equitable relief.

   2. If the item is titled in your name, the item is presumed to be attributable to you. However, you can rebut this presumption based on the facts and circumstances.

   3. You did not know, and had no reason to know, that funds intended for the payment of tax were misappropriated by your spouse (or former spouse) for his or her benefit. If you meet this exception, the IRS will consider granting equitable relief although the unpaid tax may be attributable in part or in full to your item, and only to the extent the funds intended for payment were taken by your spouse (or former spouse).

   4. You establish that you were the victim of spousal abuse or domestic violence before the return was filed, and that, as a result of the prior abuse, you did not challenge the treatment of any items on the return for fear of your spouse's (or former spouse's) retaliation. If you meet this exception, relief will be considered even though the understated tax or unpaid tax may be attributable in part or in full to your item.

   5. The item giving rise to the understated tax or deficiency is attributable to you, but you establish that your spouse's (or former spouse's) fraud is the reason for the erroneous item.

Factors for Determining Whether To Grant Equitable Relief

If you meet all the threshold conditions, the IRS will grant equitable relief if you establish that it would be unfair to hold you liable for the understated or unpaid tax. The IRS will consider all facts and circumstances of your case in determining whether it is unfair to hold you liable for all or part of the unpaid income tax liability or deficiency, and whether full or partial equitable relief should be granted. The factors listed below are designed as guides and not intended to be an exclusive list. Other factors relevant to your case also may be considered. In evaluating your claim for relief, no one factor or a majority of factors necessarily determines the outcome. The degree of importance of each factor varies depending on your facts and circumstances. Abuse or the exercise of financial control by your spouse (or former spouse) is a factor that may impact the other factors, as described below. Factors the IRS will consider include the following.

Marital Status

The IRS will consider whether you are no longer married to your spouse as of the date the IRS makes its determination. If you are still married to your spouse, this factor is neutral. If you are no longer married to your spouse, this factor will weigh in favor of relief. You will be treated as being no longer married to your spouse only in the following situations.

• You are divorced from your spouse.

• You are legally separated from your spouse under applicable state law.

• You are a widow or widower and are not an heir to your spouse's estate that would have sufficient assets to pay the tax liability.

• You have not been a member of the same household as your spouse at any time during the 12-month period ending on the date the IRS makes its determination. For these purposes, a temporary absence (for example, due to imprisonment, illness, business, military service, or education) is not considered separation if the absent spouse is expected to return to the household. You are a member of the same household as your spouse for any period in which both of you maintain the same residence.

Economic Hardship

The IRS will consider whether you will suffer economic hardship if relief is not granted. For purposes of this factor, an economic hardship exists if satisfaction of the tax liability in whole or in part will cause you to be unable to pay reasonable basic living expenses. The IRS will determine whether you meet this factor based on the information you provide in Part IV of Form 8857. If denying relief will cause you to suffer economic hardship, this factor will weigh in favor of relief. If denying relief will not cause you to suffer economic hardship, this factor will be neutral.

Knowledge or Reason to Know

Understated tax on a joint return. The IRS will consider whether you knew or had reason to know of the item giving rise to the understated tax or deficiency as of the date the joint return (including a joint amended return) was filed, or the date you reasonably believed the joint return was filed. If you did not know and had no reason to know of the item giving rise to the understated tax, this factor will weigh in favor of relief. If you knew or had reason to know of the item giving rise to the understated tax, this factor will weigh against relief. Actual knowledge of the item giving rise to the understated tax or deficiency will not be weighed more heavily than any other factor. Depending on the facts and circumstances, if you were abused by your spouse or former spouse (as discussed later), or your spouse (or former spouse) maintained control of the household finances by restricting your access to financial information, and because of the abuse or financial control, you were not able to challenge the treatment of any items on the joint return for fear of your spouse’s (or former spouse’s) retaliation, this factor will weigh in favor of relief even if you knew or had reason to know of the items giving rise to the understated tax or deficiency.

Understated tax on a return other than a joint return. The IRS will consider whether you knew or had reason to know of an item of community income properly includible in gross income, which, under item (3) discussed earlier under Relief From Liability for Tax Attributable to an Item of Community Income, would be treated as the income of your spouse (or former spouse).

Unpaid tax. In the case of an income tax liability that was properly reported but not paid, the IRS will consider whether (as of the date the return was filed or the date you reasonably believed the return was filed) you knew or had reason to know that your spouse (or former spouse) would not or could not pay the tax liability at that time or within a reasonable period of time after the filing of the return. This factor will weigh in favor of relief if you reasonably expected your spouse (or former spouse) to pay the tax liability reported on the return. A reasonable expectation of payment will be presumed if the spouses submitted a request for an installment agreement to pay the tax reported as due on the return. To benefit from the presumption, the request for an installment agreement must be filed by the later of 90 days after the due date for payment of the tax, or 90 days after the return was filed. The request must detail the plan for paying the tax, interest, and penalties, satisfy the liability within a reasonable time, and it must not be unreasonable for you to believe that your spouse (or former spouse) will be able to make the payments contemplated in the requested installment agreement. This factor will weigh against relief if, based on the facts and circumstances of the case, it was not reasonable for you to believe that your spouse (or former spouse) would or could pay the tax liability shown on the return. For example, if prior to the return being filed, or the date you reasonably believed the return was filed, you knew of your spouse’s (or former spouse’s) prior bankruptcies, financial difficulties, or other issues with the IRS or other creditors, or was otherwise aware of difficulties in timely paying bills, then this factor will generally weigh against relief. Depending on the facts and circumstances, if you were abused by your spouse or former spouse (as discussed later), or your spouse (or former spouse) maintained control of the household finances by restricting your access to financial information, and because of the abuse or financial control, you were not able to question the payment of the taxes reported as due on the return or challenge your spouse’s (or former spouse’s) assurance regarding payment of the taxes for fear of his or her retaliation, this factor will weigh in favor of relief even if you knew or had reason to know about your spouse’s (or former spouse’s) intent or ability to pay the taxes due. In the case of an unpaid tax on an amended return that reports a liability based on items not properly reported on the original return, the initial inquiry is whether (as of the date the amended return was filed, or the date you reasonably believed the amended return was filed) you reasonably expected that your spouse (or former spouse) would pay the tax within a reasonable period of time. If so, this factor will weigh in favor of relief. However, if it was not reasonable for you to expect that your spouse (or former spouse) would pay the tax, your knowledge or reason to know of the understated tax on the original return will also be considered. If you knew or had reason to know of the item giving rise to the understated tax on the original return, then this factor will weigh against relief. If you did not know or have reason to know of the item, then this factor will weigh in favor of relief.

Reason to know. The facts and circumstances that are considered in determining whether you had reason to know of an understated tax, or reason to know whether your spouse (or former spouse) could or would pay the reported tax liability, include, but are not limited to the following.

• Your level of education.

• Any deceit or evasiveness of your spouse (or former spouse).

• Your degree of involvement in the activity generating the income tax liability.

• Your involvement in business or household financial matters.

• Your business or financial expertise.

• Any lavish or unusual expenditures compared with past spending levels.

Example.

You and your spouse filed a joint 2011 return. That return showed you owed $10,000. You had $5,000 of your own money and you took out a loan to pay the other $5,000. You gave two checks for $5,000 each to your spouse to pay the $10,000 liability. Without telling you, your spouse took the $5,000 loan and spent it on himself. You and your spouse were divorced in 2012. In addition, you had no knowledge or reason to know at the time you signed the return that the tax would not be paid. These facts indicate to the IRS that it may be unfair to hold you liable for the $5,000 unpaid tax. The IRS will consider these facts, together with all of the other facts and circumstances, to determine whether to grant you equitable relief from the $5,000 unpaid tax.

Abuse by your spouse (or former spouse). For purposes of the equitable relief rules, if you establish that you were the victim of abuse (not amounting to duress, which is discussed in the Instructions for Form 8857), then depending on the facts and circumstances of your situation, the abuse may result in certain factors weighing in favor of relief when otherwise the factor may have weighed against relief. Abuse comes in many forms and can include physical, psychological, sexual, or emotional abuse, including efforts to control, isolate, humiliate, and intimidate you, or to undermine your ability to reason independently and be able to do what is required under the tax laws. The IRS will consider all the facts and circumstances in determining whether you were abused. The IRS also will consider the impact of your spouse’s (or former spouse’s) alcohol or drug abuse in determining whether you were abused. Depending on the facts and circumstances, abuse of your child or other family member living in the household may constitute abuse of you.

Legal Obligation

The IRS will consider whether you or your spouse (or former spouse) has a legal obligation to pay the outstanding federal income tax liability. For purposes of this factor, a legal obligation is an obligation arising from a divorce decree or other legally binding agreement. This factor will weigh in favor of relief if your former spouse has the sole legal obligation to pay the outstanding income tax liability pursuant to a divorce decree or agreement. This factor will be neutral if you knew or had reason to know, when entering into the divorce decree or agreement, that your former spouse would not pay the income tax liability. This factor will weigh against relief if you have the sole legal obligation. The fact that your spouse (or former spouse) has been relieved of liability for the taxes at issue as a result of a discharge in bankruptcy is disregarded in determining whether you have the sole legal obligation. This factor will be neutral if, based on an agreement or consent order, both spouses have a legal obligation to pay the outstanding income tax liability, the spouses are not separated or divorced, or the divorce decree or agreement is silent as to any obligation to pay the outstanding income tax liability.

Significant Benefit

The IRS will consider whether you significantly benefited from the unpaid income tax liability or understated tax. A significant benefit is any benefit in excess of normal support. For example, if you enjoyed the benefits of a lavish lifestyle, such as owning luxury assets and taking expensive vacations, this factor will weigh against relief. If, however, your spouse (or former spouse) controlled the household and business finances or there was abuse (discussed earlier) such that he or she made the decision on spending funds for a lavish lifestyle, then this mitigates this factor so that it is neutral. If only your spouse (or former spouse) significantly benefitted from the unpaid tax or understatement, and you had little or no benefit, or your spouse (or former spouse) enjoyed the benefit to your detriment, this factor will weigh in favor of relief. If the amount of unpaid tax or understated tax was small such that neither spouse received a significant benefit, then this factor is neutral. Whether the amount of unpaid tax or understated tax is small such that neither spouse received a significant benefit will vary depending on the facts and circumstances of each case.

Compliance With Income Tax Laws

The IRS will consider whether you have made a good faith effort to comply with the income tax laws in the tax years following the tax year or years to which the request for relief relates.

If you are compliant for tax years after being divorced from your spouse, then this factor will weigh in favor of relief. If you are not compliant, then this factor will weigh against relief. If you made a good faith effort to comply with the tax laws but were unable to fully comply, then this factor will be neutral. For example, if you timely filed an income tax return but were unable to fully pay the tax liability due to your poor financial or economic situation after the divorce, then this factor will be neutral.

If you remain married to your spouse, whether or not legally separated or living apart, and continue to file joint returns with your spouse after requesting relief, then this factor will be neutral if the joint returns are compliant with the tax laws. If the joint returns are not compliant with the tax laws, then this factor will weigh against relief.

If you remain married to your spouse but file separate returns, this factor will weigh in favor of relief if you are compliant with the tax laws. If you are not compliant with the tax laws, then this factor will weigh against relief. If you made a good faith effort to comply with the tax laws but were unable to fully comply, then this factor will be neutral. For example, if you timely filed an income tax return but were unable to fully pay the tax liability due to your poor financial or economic situation as a result of being separated or living apart from your spouse, then this factor will be neutral.

Mental or Physical Health

The IRS will consider whether you were in poor physical or mental health. This factor will weigh in favor of relief if you were in poor mental or physical health at one of the following times.

• At the time the return or returns for which the request for relief relates were filed.

• At the time you reasonably believed the return or returns were filed.

• At the time you request relief.

IRS will consider the nature, extent, and duration of your condition, including the ongoing economic impact of your illness. If you were in neither poor physical nor poor mental health, this factor is neutral.

Refunds

If you are granted relief, refunds are:

• Permitted under innocent spouse relief and equitable relief as explained later under Limit on Amount of Refund .

• Not permitted under separation of liability relief.

Proof Required

The IRS will only refund payments you made with your own money. However, you must provide proof that you made the payments with your own money. Examples of proof are a copy of your bank statement or a canceled check. No proof is required if your individual refund was used by the IRS to pay a tax you owed on a joint tax return for another year.

Limit on Amount of Refund

You are not eligible for refunds of payments made with the joint return, joint payments, or payments that your spouse (or former spouse) made. For example, withholding tax and estimated tax payments cannot be refunded because they are considered made with the joint return. However, you may be entitled to a refund of your portion of a joint overpayment from another year that was applied to the joint tax for a different year. You will need to show your portion of the joint overpayment.

The amount of your refund is limited. Read the following chart to find out the limit.

[RiaB 1]

I would be applying separately for my taxes for year 2016. Our divorce is not finalized. Still in the filing process. But my soon to be ex got his permanent green card this summer and the day after he got approval, he moved out which makes it obvious he only married for the green card. Somehow they mailed him his green card to his new address without asking any questions. We only been married three years and I heard from mutual friends he's trying to apply for citizenship and I am trying to see how it's possible he will be able to do that.

[Chris&Angel 5]

Anybody who is ponder divorce or has filed for a divorce, should file there Taxes Separately, that way each is responsibile for there own tax situation. Naturly filing jointly has it's advantages IMHO.

[Chris&Angel 5]

Can someone apply US citizenship based on 5 years rule and divorce is in process, but a spouse who is US citizen is filling IRS taxes jointly and they are due. So, is it still safe to apply for Citizenship?

KKK1,

How many years has she filed a Joint Tax Return, did you agree to a Joint Tax Return, where you aware of this, did you sign the IRS 1040 document, if not who did? If the answer is "No", there is a serious problem called "Forgery". File for a Separation of Iiability with IRS and State.

[Villanelle 4,122]

I would be applying separately for my taxes for year 2016. Our divorce is not finalized. Still in the filing process. But my soon to be ex got his permanent green card this summer and the day after he got approval, he moved out which makes it obvious he only married for the green card. Somehow they mailed him his green card to his new address without asking any questions. We only been married three years and I heard from mutual friends he's trying to apply for citizenship and I am trying to see how it's possible he will be able to do that.

Im confused here. Are you the person kkk1 was talking about in the thread?