Married Filing Separate Question

[jrollo]

Couple's divorce is not final, and there is no separation agreement. They have lived apart for the entire year. Husband is paying court ordered spousal support.

Neither party qualifies for Head of Household, nor do I believe they can file Married Filing Joint since there are support payments.

My question is this: to report the spousal support the correct way husband and wife would have to file Married Filing Separate?

Thank you,

Jeff

[Pacun]

Married people who lived apart the whole year without any children have two choices: MFJ and MFS. Since MFJ is not an option, your only choice is MFS. Since they lived apart the whole year, if one itemizes, the other can use the standard deduction or itemize also.

[jrollo]

Pacun:

Thank you for the reply. Going to double check with the wife to make sure there is not a separation agreement.

Thanks again for the reply.

Jeff

Married people who lived apart the whole year without any children have two choices: MFJ and MFS. Since MFJ is not an option, your only choice is MFS. Since they lived apart the whole year, if one itemizes, the other can use the standard deduction or itemize also.

[Pacun]

The fact that they are still married overrules any separation agreement for 1040.

[jrollo]

Since there is no separation agreement. Is it still possible to filed them MFJ. Reporting the received spousal support on line 11 and then reducing AGI with the same amount on line 31. They will have a refund is the TPs file MFJ>

Thank you,

Jeff

The fact that they are still married overrules any separation agreement for 1040.

[jainen]

>> Reporting the received spousal support on line 11 and then reducing AGI with the same amount on line 31<<

In my opinion, based on Pub 504 at My link, payments can ONLY count as alimony "if the spouses do not file a joint return with each other." That is the opposite of the interpretation in the original post. In my opinion, married taxpayers can still file a joint return even if one is supporting the other!

[ljwalters]

>Since they lived apart the whole year, if one itemizes, the other can use the standard deduction or itemize also.<

where is it written if they lived apart for the whole year the rules that if one FMS itemizes they both have to Itemize do not apply

In MHO MFJ if they both agree and it is best (leaving spousal support off return) OR MFS with both using the same type deduction (A or standard).

Be careful this could be a conflict of interest return. and who gets the refund. I had a client come in like this and since she got the house and all the deductions and he had to use the A because she did, It was better for him to go MFJ and give her the refund. It saved him $7,000 in tax owed. But that was my case and all cases are different.

Linda and buddy

[Pacun]

>Since they lived apart the whole year, if one itemizes, the other can use the standard deduction or itemize also.<

where is it written if they lived apart for the whole year the rules that if one FMS itemizes they both have to Itemize do not apply

Thanks for restating what I said. I knew I was right.

[jainen]

>> I knew I was right<<

I agree with you, Pacun. MFS does NOT require you to itemize when your spouse does. You can ALWAYS take the standard deduction if you want to. According to the instructions to line 40a of Form 1040 at My link, even if your spouse itemizes on a separate return you CAN still take the appropriate standard deduction by simply checking the box on Line 39b. If anyone doubts me, just click on My link to look it up.

[ljwalters]

Page 15 Line 3 Married Filing Separately

at MY Link from jainen post above

If you are married and file a separate return,

you will usually pay more tax than if you

use another filing status for which you

qualify. Also, if you file a separate return,

you cannot take the student loan interest

deduction, the tuition and fees deduction,

the education credits, or the earned income

credit. You also cannot take the standard

deduction if your spouse itemizes deduc-

tions. Generally, you report only your own income,

exemptions, deductions, and cred-

its. Different rules apply to people in com-

munity property states. See page 21.

Be sure to enter your spouses SSN or

ITIN on Form 1040 unless your spouse

does not have and is not required to have an

SSN or ITIN.

If there is another quote of this law Just quote it and or tell us were you are getting your site from.

I personally HATE this rule but figure we are stuck with it.

Linda

[jrollo]

Thanks to all who replied:

This post has been a great learning experience for me.

After talking to both parties it has been decided that the return will be filed MFJ using the standard deduction and the spousal payments will not not be part of the return. In addition, the wife will receive the total refund. If we would have filed MFS the husband would have owed a great deal.

Thanks again to all, I learned a great deal today.

Jeff

[kcjenkins]

Jainen's point is that if filing MFS and one spouse itemizes, the allowed 'standard deduction' for the other spouse is ZERO. Note he said "take the appropriate standard deduction by simply checking the box on Line 39b." Look at what happens when you do that, the 'standard' goes to zero, only amounts entered on Sch A, however small, will show on line 40a.

By the way, just to reiterate, 'spousal support' is not ever a deduction, for the one paying it, nor income to the one receiving it. Only alimony is. They do have the right to file a joint return, if both agree to it. But if they file MFS, or MFJ, that 'support' is not going to be a factor anyway.

[michaelmars]

in a bitter separation how would one spouse know how the other filed? that was always an issue for me as is splitting any estimated taxes made and home deductions.

[kcjenkins]

Well, in most cases the lawyer can get you that answer. And usually on 'bitter' seperations, they know enough about each other to know whether the spouse has enough, or close to enough, to itemize. I always ask, but if I don't know for certain, I err on the safe side of assuming the other spouse did or will itemize.

As for splitting the 'joint' things like mortgage, you look at who paid it, or you split it down the middle if it's paid out of a joint account that both use. And you tell the client they have to provide you what they paid, so that you can keep them out of trouble.

Clearly if they had paid in joint estimated payments, they are going to have to reach an agreement [through their lawyers preferably] on who claims how much. The IRS will accept any division that they both agree to.

[Jack from Ohio]

Spousal Support = Alimony

[Lion EA]

In CT, child support is not reportable but spousal support is taxed to the recipient and deductible to the payer per most divorce decrees; at least everyone that I've seen spells it out specifically.

[Pacun]

in a bitter separation how would one spouse know how the other filed? that was always an issue for me as is splitting any estimated taxes made and home deductions.

Remember, if they lived apart the whole tax year, it doesn't matter if the other spouse itemizes. The problem is when they lived together at some point during the tax year.

[kcjenkins]

Spousal Support = Alimony

Jack, in this case they are not divorced nor under a legal separation, in which case it's not alimony. Before you can have legally deductible alimony, you have to have either a divorce or a legal separation order. If I'm wrong, please give me a cite.

[Jack from Ohio]

Jack, in this case they are not divorced nor under a legal separation, in which case it's not alimony. Before you can have legally deductible alimony, you have to have either a divorce or a legal separation order. If I'm wrong, please give me a cite.

If there is no court order, any monies given by one to the other are strictly gifts. The terms "spousal support" and "alimony" are interchangeable. These only come into play due to a court order. I have first hand knowledge of this.

[grandmabee]

I thought the first post said Court ordered spousal support.

[kcjenkins]

It did, which is what has us all a bit confused. It said there was no legal separation and no divorce, too.

[jainen]

>>what has us all a bit confused<<

No need for confusion on that point. According to Pub 504 at My link, the term "divorce or separation instrument" includes "any type of court order requiring a spouse to make payments for the support or maintenance of the other spouse. This includes a temporary decree, an interlocutory (not final) decree, and a decree of alimony pendente lite (while awaiting action on the final decree or agreement)."