What Are a Non Filing Spouse's Rights in Relation to a Joint Tax Return

[cheebs]

My question involves bankruptcy in the state of: florida
my wife has filed chapter 7 by herself. now the trustee has taken our tax refund. what are my rights? first the refund was taken in my name. the trustee put my name on the letter she sent to the irs so the irs would give her the refund. i spend hours talking to the irs to fix the fact that i was not in bankruptcy only my wife but in the irs computer we both were in chapter7 even tho when the irs opened the bankruptcy only my wife was listed. no one will give me a copy of this letter. second the formula used here in florida to calculate how much of the refund she can take does not entitle her to the whole tax refund she is holding 1800$ that she has no claim to. my wife has a lawyer but there is a lot of double talk and lying in dealing with this guy first he told us that the trustee just added this rule and we could not fight this and she would be taking all of the refund. then i went online and did some research and found in the district that my wife filed in there was already a case where the judge ruled that joint refunds are considered tenancy by the entireties and the trustee was not entitled to ANY of the refund. so i sent this to the lawyer and he that was great thanks for the help and he should be able to get 40% of the refund back. then called me back to show me a case he found where the judge ruled the other way but only because the other spouse had not added any income to the return which does NOT apply to us. i found it strange that he went and found a case that would go against his client. the last can we had from the lawyer said that this would be taken care of within 2 or 3 days. of course we have not heard from him in two weeks. i would like to know what are my rights what would i have to do to go after my tax refund? the lawyer says that i am subject to backlash of the the chapter 7. i thought that what ever effect would be small. if you want to look at the case i was talking about this is it. just put in google the pdf will come up. Case No. 6:07-bk-05516-KSJ thanks for listening to me. forgot one last thing im disabled so my income doesnt count.

[Mr. Knowitall]

my wife has filed chapter 7 by herself. now the trustee has taken our tax refund. what are my rights?

You have the right to either file a motion with the court to directly assert your rights, or to see what happens when your wife files a motion asserting her own rights.[/quote]

no one will give me a copy of this letter.

If "no one" includes your wife, I can't help you with that. If your wife wants a copy she should be able to obtain one directly or from her lawyer and then share it with you.

then i went online and did some research and found in the district that my wife filed in there was already a case where the judge ruled that joint refunds are considered tenancy by the entireties and the trustee was not entitled to ANY of the refund. so i sent this to the lawyer and he that was great thanks for the help and he should be able to get 40% of the refund back. then called me back to show me a case he found where the judge ruled the other way but only because the other spouse had not added any income to the return which does NOT apply to us. i found it strange that he went and found a case that would go against his client.

If lawyers relied upon what their clients believe constitutes legal research, they would end up repeatedly embarrassing themselves in court. A lawyer has an obligation to ensure that the law he presents to the court is relevant to the issue and has not been overruled, and also has a duty of candor if he finds countervailing authority.

forgot one last thing im disabled so my income doesnt count.

If you're stating that all of the income on the tax return was earned by your wife, there is strong countervailing authority. You found the general rule as set forth in In re Freeman. The lawyer probably found a case like In re Morine:

In the instant case, the non-debtor spouse contributed no taxable income, so the entire tax refund is attributable to the Debtor. Therefore, based on Rev. Rul. 74-611, it is inappropriate to characterize the property as owned by tenancy of the entireties.

Also, Freeman states,

In this case, the debtor and her husband apparently have no joint creditors. As such, if the tax refund is owned by the couple as tenants by the entireties, no creditor or the Chapter 7 trustee could reach the property.

In In re: Gorny, 2008 Bankr. LEXIS 3726 (Bankr. M.D. Fla. Aug. 29, 2008), the court found that because the bankrupt estate included joint creditors the rule of Freeman did not apply.

[cheebs]

A guy on the told me to ask for the order the trustee sent to the Irs to take the tax return and if my wife's lawyer asked her why she should say that she needs it just in case something goes wrong and that it. so i told my wife to call them up and do that . She called them on a Tuesday and the trustee release the money and we had it by Friday morning. From the time she asked for that order we still have not received the order after asking in writing, over the phone and in person. this is the second time the trustee has done something after my wife has talked to her lawyer. next the lawyer filed a motion to let us keep the tax return. my wife could not go to the hearing so i went. i watched this lady work for much of the morning then my wife's case came up. the trustee when up and the lawyer for my wife. As the trustee is stating her case she is laughing. that rubbed me the wrong way. so my wife's lawyer states her case and does not saying thing about the things they talked about. and when the trustee went to rebut what he had stated for her case. the judge said that the issue at hand was something for a the 11th district court and he would side with the trustee. so after we leave the court they start giving me the sob story about how the tried their best as if i was not there and if we wanted to and the judge also said that this was an issue for the 11th district court but of course at a higher cost. ok i understand so i get home call my wife and tell her to ask the lawyer for the trustee order. i figure if the trustee is going to take my money i might as well not let her walk away clean. Even if i can not file charges in court i can submit the fraud to the bar as misconduct. according to the irs the trustee sent in her order that gave them the idea that i we were both filing for chapter 7. They also said that she would have not gotten the refund if they had known before they sent it to the trustee. as for the order as of yesterday my wife had talked with the lawyer about getting it and first she was told that the trustee did not have to give it the lawyer. when i told my wife that did not sound right and call them back. then she was told that if she really wanted the letter she would have to pay for the time to get it. I know it all sounds crazy and mixed up . my head is spining so i might have left a step or two out. But you can't tell me there is not some weird stuff going on here.