What to do when a community property state spouse will not provide documents for income tax preparation

[Busy123]

My client lives in a community property state (California).  She lived in separate residents from her spouse for all of 2022. She has three children. She does not have a legal separation document from the court.

She has requested her spouse's W-2 and 1099 information to file for 2022. He will not provide it.

She can file HOH but Form 8958 is still required to show the community property allocation of income.

Any advice?

Thank you

[Terry53029]

I am in Wisconsin, and have had several clients in your situation, and I just don't fill out the 8958. I make a note in my clients file that spouse would not provide information. Never had an issue in over 30 years. Don't know if IRS would agree

[Just-Lisa-Now-]

Im with Terry on this, you cant force anyone to give you info., I just check the NO box at the top of the 8958 and use my clients info only.

[TaxGuyBill]

It sounds like the spouse is treating it as non-community property.

https://www.irs.gov/publications/p555#en_US_202001_publink1000168799

[BobKamman]

All I know is what I learn from the Internet.

"California uses the date of separation as the essential date for determining property interests; property acquired by a spouse after the date of separation is considered to be that spouse’s separate property, while property acquired before the date of separation is community property."

 https://cadivorce.com/california-divorce-guide/what-to-expect/significance-of-the-date-of-separation... 

[Busy123]

Thank you Bob. However, it's my understanding that the "separation" must be a "judicial separation" to file other than MFS.

[BobKamman]

And where did you get that understanding?

[sjrcpa]

Do they have those in California? They are extremely rare in Maryland.

[BobKamman]

@sjrcpa  Do you mean "judicial separation"?  Or "understanding"?

[Busy123]

My understanding is a Court documented legal separation. If you do not have at least that, if a married couple files separately, they must file MFS instead of single.

[BobKamman]

You might want to post a new question if you want to change the topic from definition of community property, to filing status.  On second thought, you would probably just post your misunderstandings on that one too, and not get the hint that you need to check your sources.  

[Busy123]

Thanks Bob....My source of "understanding" is the IRS.

[IRonMaN]

Bob is a very knowledgeable guy.  His folks thought he was a bright young lad and thought he would go a long way in life so they signed him up for charm school to help him along.  He did quite well there and actually graduated first in his class at the Don Rickles Charm School.  As a side note, if he really likes you, he will call you a hockey puck.

[PATAX]

We don't have that issue in Taxsylvania, so I don't know much about it. What I do know is that when a couple is going through a divorce or a separation people get spiteful sometimes. That is why I usually tell both of them to go take a hike. I don't have time for Chuck E Cheese games.

[BobKamman]

@IRonMaN is what we curmudgeons call "Minnesota nice," which means that if he hears someone at the barber shop giving out incorrect information to three other customers, he'll still chip in to buy the guy a shave along with his haircut.  Unlike me, he is not concerned about sludge on the Internet.  If I see something that might mislead the next ten readers, I will do what I can to stop it from oozing that far, even if the befuddled originator is hopeless. 

If anyone -- today, or in the rest of this century -- really wants to know the IRS position on this question, it's right there in Pub 555:

"In some states, the marital community ends when the spouses permanently separate, even if there is no formal agreement. Check your state law."

https://www.irs.gov/pub/irs-pdf/p555.pdf    Page 10

[IRonMaN]

"If I see something that might mislead the next ten readers, I will do what I can to stop it from oozing that far, even if the befuddled originator is hopeless."

But I do care, and I have tried correcting bad info many times over the years.  And although Minnesota was a hockey state long before Arizona formed ice in the middle of a desert, I try to correct the bad info without the use of hockey pucks. 

[BobKamman]

@IRonMaN  All I asked on Friday was, "And where did you get that understanding?"  And there was no answer.  Is that a hockey puck?  If a tree falls in the North Woods (or a saguaro falls on the desert) and no one hears it, is there any sound?  Sometimes you first have to get someone's attention.  

[IRonMaN]

All you have to do is holler timber for a falling tree ———- but I have to admit I don’t know what you holler for a falling cactus.

[sjrcpa]

@BobKamman I meant judicial separation.