I am divorced (2003) but still co-own a home with my ex-wife. My name
is still on the mortgage and deed, but I do not reside at the property
anytime during the year. As part of our settlement, I am able to
deduct half of the real estate taxes and mortgage interest, as long as
it is allowed under IRS tax codes. My ex is now saying that she has
been told (by whom?) that I am not allowed to claim my portion of the
mortgage interest deduction, and that she will be taking the entire
deduction for herself. I also own my primary residence jointly with my
current wife. Based on these circumstances, am I able to claim as a
deduction my half of the mortgage interest as I have done in prior
years?

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Clarification of Question by ram2112-ga on 09 Jan 2006 08:57 PST

To clarify: My more specific to the question is whether or not my
claiming the deduction is allowable under IRS codes? I know that I am
entitled to the deduction per the decree, but will the IRS allow me
this deduction since it is not my primary residence, nor a "second
home" per se.

Am I the first person to suggest that one of you should have bought the other out?

**i am not a google researcher; however, i have lots of experience in
the mortgage servicing industry**

Since you are still on the mortgage and deed, the interest statement
issued for interest paid (should)/would have both of your names on it.
Generally speaking, it doesnt matter who claims the interest, or how
it is divided between both of you, the bank doesnt care or have the
ability to dictact who can/should claim it. However, you have
indicated that your divorce proceedings noted that you would be
splitting those figures. She may be thinking that she is able to claim
all of the interest if her name is listed (first) indicating she is
the primary borrower; however name order on a mortgage is irrelevent.
I would recommend speaking to your tax preperation person to verify
this and how you should go about claiming the interest. However, since
your name wasnt removed from the mortgage/deed, you have a right to
the interest paid as much as she does. If she didnt want you to claim
it, maybe she should have put more effort from having you removed from
the mortgage & deed before she opened her mouth. Her tax person may be
advising her this. If things concerning the divorce decree arent
beeing handled appropriately, i would recommend consulting your
contact for the divorce proceedings.

You could let her claim it all and then sue her in small claims court
under the divorce agreement for your portion.

First, I would confirm you can take the deduction, which you are doing here, then:

I would tell her that you have been advised that you are allowed the
deduction and will be taking it as allowed by IRS Code #xyz. If she
then decides to take the second half, it will be SHE that is in
trouble with the IRS, not you. In other words, do the same thing to
her that she did to you (just tell her your intentions) --but be sure
you have the law on your side.

One of the easiest ways to get fast, straight answers about US Tax
Laws is by calling the IRS. They are free, and after you ger a
telephone answer, you can write to them and get the answer (called a
"determination") in writing, which can then be forwarded to your wife,
should she not believe you.

Contact your local IRS office:
http://www.irs.gov/localcontacts/index.html

Although markvmd has a good idea, it would be too hard to determine
damages, as this is a deduction, in a much bigger picture of a tax
return, not an amount that will be received in a refund.

~~Cynthia

Take the deduction.  Let her explain to the IRS why she has taken more
than the one-half she is entitle to.