if married and separated, how long til "single"

[schirallicpa]

I have an old client who has always filed single. I have known him for years. Never realized til last summer that he was legally still married to his wife who left him many years ago.

This year I have a client - who was new last year - who's husband had left her in 2009. We filed MFJ for 2009. But this year, he has already filed his tax return. She thinks as single. They have not gone to court, or even begun to talk about divorce. They just aren't together. So - is that okay for them to file single now? Is there an amount of time required to be apart before single is legit? I have referenced the JK lasser book and it desribes the couple as living apart but with nothing finalized, then your not considered divorced and you must file joint or separate. This contradicts my first sentence which the older man files single. And really creates a burden on people like this client who cannot force her husband to divorce her. She isn't even sure where he is.

So that leads me to a secondary question - if he filed single, can she file MFS? Or will it kick back?

[Pacun]

If you are married with no dependents living with you, you have ONLY two choices MFJ or MFS. (that was a period).

If you are not the preparer for the husband (on the second case), you don't have to worry how he filed. File as MFS and maybe she should itemize.

"And really creates a burden on people like this client who cannot force her husband to divorce her.". She can get a divorce without forcing him.

You are married until you get divorced in front of a judge, your marriage is annulled or your spouse dies. Time has nothing to do in this situation.

[LisaAnn]

I have a similar situation; the taxpayer doesn't know where the husband is or if he's still alive! It's been 3 years since anyone has heard from him. To add a twist, my taxpayer now has a child from another man, whom she doesn't live with. The state even tried to find the original husband because of birth certificate issues and they couldn't locate him. It's unfortunate because she is not able to file for EIC because of the MFS status. (She doesn't qualify for HOH-lives with grandmother who pays the house bills)

[chadlonetree]

I disagree. We know you can file "Single" if you are legally separated. So I guess it depends on which State you live in. I'm no attorney but I do recall some state's having "implied legal separation" statutes in which you can be viewed legally separated without having any court decree or documentation.

I know you want to do your part as the preparer to file correctly. But I can't imagine an auditor fighting you on this issue. Or if they do, not winning on appeal.

[jainen]

>>cannot force her husband to divorce her<<

"Legal separation" is very rare these days, because all states have no-fault divorce laws. Generally the only time a judge would agree to issue an order of legal separation is where the spouses are strongly opposed to divorce for religious reasons.

There is no such thing as "implied legal separation." She MUST get a court ruling or she is still married, at least for purposes of income tax. She doesn't have to force anybody or prove anything. She doesn't need any reason at all. But she does need something signed by a judge.

[OldJack]

I disagree. This man can file single under the concept of "considered unmarried". For a person that qualifies as considered unmarried they qualify for head of household but if they don't meet the requirements of head of household they can file single as the default under "and you do not qualify for another filing status". See pub 17 under heading single.

[grandmabee]

I disagree. This man can file single under the concept of "considered unmarried". For a person that qualifies as considered unmarried they qualify for head of household but if they don't meet the requirements of head of household they can file single as the default under "and you do not qualify for another filing status". See pub 17 under heading single.

but he does qualify for another filing status MFS

[kcjenkins]

Jack, I seldom disagree with you, but this time you are frankly wrong. If you have not got a court order [of either divorce or legal separation] then you are still married. And have only the options of MFJ or MFS. Unless you qualify for HOH under the abandoned spouse rule, with a qualifying child living with you, which is the ONLY exception, and for that you must meed all the rules.

[Bees Knees]

I disagree. This man can file single under the concept of "considered unmarried". For a person that qualifies as considered unmarried they qualify for head of household but if they don't meet the requirements of head of household they can file single as the default under "and you do not qualify for another filing status". See pub 17 under heading single.

Wrong. Considered Unmarried as described on page 21 of Pub 17 only applies for the Head of Household filing status. If you don't qualify for HOH (because there are no kids), then you have to follow the rules on page 19 of Pub 17 under Considered Married. Pub 17 says:

Considered married. You are considered

married for the whole year if on the last day of

your tax year you and your spouse meet any one

of the following tests.

1. You are married and living together as

husband and wife.

2. You are living together in a common law

marriage that is recognized in the state

where you now live or in the state where

the common law marriage began.

3. You are married and living apart, but not

legally separated under a decree of divorce

or separate maintenance.

4. You are separated under an interlocutory

(not final) decree of divorce. For purposes

of filing a joint return, you are not considered divorced.

Number 3 above fits the description of the original poster. Thus, you have to file MFS or MFJ. Single is not an option until you get divorced, or get a court ordered decree of divorce or separate maintenance.

[OldJack]

Under everyone determination in this post there is no such thing as ""and you do not qualify for another filing status". If he qualifies and elects as "considered unmarried" he does not file married. Think about it.

>>RIA Federal Tax Handbook 2011:

Paragraph 1102-Single Individuals.

>>Taxpayers who aren't married at year's end and who don't qualify as surviving spouses or heads of household, and certain married taxpayers living apart compute their tax under the following tax rates for single persons if they can't use the tax tables.<<

[David1980]

If you could choose to file single, as "you do not qualify for another filing status" (other than MFJ or MFS), why would anyone ever file MFS?

[Bees Knees]

Under everyone determination in this post there is no such thing as ""and you do not qualify for another filing status".

The taxpayer qualifies for the Married Filing Separate filing status. Thus your reference to the phrase: "and you do not qualify for another filing status" is not relevant.

Pub 17, page 20:

Your filing status is single if, on the last day of

the year, you are unmarried or legally separated

from your spouse under a divorce or separate

maintenance decree, and you do not qualify for

another filing status.

The phrase "you do not qualify for another filing status" is referring to a taxpayer who was unmarried or legally separated from his/her spouse. As such, Married Filing Joint and Married Filing Separate are not allowed. The other two options besides single are Head of Household or Qualifying Widow(er). Thus, if a single person cannot file as HOH or QW, then single is the only other option.

Nothing in that implies that someone who can file as MFS has the option to elect to file as single.

[OldJack]

If you could choose to file single, as "you do not qualify for another filing status" (other than MFJ or MFS), why would anyone ever file MFS?

Because they "qualify as married" and NOT as "considered unmarried"!

Why is everyone so hung up with the fact that single is a default filing status? Is it because.. you may have been filing tax returns wrong for so many years?

OK.. if you still disagree with me tell me WHO are these >>certain married taxpayers living apart compute their tax under the following tax rates for single persons if they can't use the tax tables<<

[jainen]

>> certain married taxpayers living apart <<

OldJack is teasing us, and quite properly so. He challenges us to get off our assumptions and defend our position with something specific. The answer is already in this thread. I absolutely agree--some married taxpayers can use the Single filing status.

Of course, not everybody, only "certain" ones. So which ones? Obviously it's the taxpayers who aren't eligible for HoH but are indeed still married--though "separated under a decree of divorce or separate maintenance." Q.E.D., OldJack.

[Bees Knees]

OldJack is teasing us, and quite properly so. He challenges us to get off our assumptions and defend our position with something specific.

I doubt it. I think he was serious. From the original post:

They have not gone to court, or even begun to talk about divorce. They just aren't together. So - is that okay for them to file single now?

Seems rather clear we are not talking about a couple who is "separated under a decree of divorce or separate maintenance." Yet OldJack seems to insist that doesn’t matter.

[michaelmars]

Interesting topic, but i go with Old Jack, if nothing else, in being equitable. Now if your spouse is MIA how can you even know of you can itemize or must take standard deduction? I think constructive abandonment comes to play here. In one of the cases above the person didn't even know if their spouse was still alive, hence MFS might be wrong too.

I'd go substance over form and on the rare chance of it happening, i'd deal with it on audit. On the other hand, if the irs says the spouse filed as mfs and thus you must too, congratulations, you can now find the person for child support and/or alimony.

[David1980]

Because they "qualify as married" and NOT as "considered unmarried"!

So what would allow them to qualify as "unmarried" in allowing them to claim single, but not HOH? Is Jainen correct in that you're referring to legal decree of divorce/separations?

[Pacun]

Interesting topic, but i go with Old Jack, if nothing else, in being equitable. Now if your spouse is MIA how can you even know of you can itemize or must take standard deduction? I think constructive abandonment comes to play here. In one of the cases above the person didn't even know if their spouse was still alive, hence MFS might be wrong too.

I'd go substance over form and on the rare chance of it happening, i'd deal with it on audit. On the other hand, if the irs says the spouse filed as mfs and thus you must too, congratulations, you can now find the person for child support and/or alimony.

How hard is to get a divorce in the USA in the 21st century? If you don't know where your spouse is, no problem, thank God that we still have printed newspapers. Your lawyer will place an ad in the newspaper and you will get divorced in a matter of months.

[OldJack]

>>Sec. 7703. Determination of marital status

-STATUTE-

(a) General rule

............

( b ) Certain married individuals living apart

For purposes of those provisions of this title which refer to

this subsection, if -

(1) an individual who is married (within the meaning of

subsection (a)) and who files a separate return maintains as his

home a household which constitutes for more than one-half of the

taxable year the principal place of abode of a child (within the

meaning of section 152(f)(1)) with respect to whom such

individual is entitled to a deduction for the taxable year under

section 151 (or would be so entitled but for section 152(e)),

(2) such individual furnishes over one-half of the cost of

maintaining such household during the taxable year, and

(3) during the last 6 months of the taxable year, such

individual's spouse is not a member of such household,

such individual shall not be considered as married.<<

There is nothing in the statute that says this person, considered unmarried, must file head of household reather than single. This person is not divorced nor is there anything mentioned about a legal separation. Think about it.

[jainen]

>>nothing in the statute that says this person, considered unmarried, must file head of household<<

Sorry, OldJack. I tried to give you an easy out, but you are being obstinate. Now I'm going to have to embarass you by citing the actual statute you have declared does not exist.

But first, I want to point out a couple of OTHER times when a married individual must be treated as unmarried for tax purposes. We know there is no federal marriage as such; it is just a law in the various states. Here in California some same-sex couples are legally married, but still must file as Single. And I think the spouse of a non-resident alien would normally file as Single.

Now for your statute. Note that your quote doesn't cover the entire tax code, only those parts that specifically refer to Section 7703. That would include Sections 2b and 2c, which run through the usual requirements for HoH to give the definition of an individual who "shall be considered a head of household." Not may be or could be or ought to be, but SHALL be. In other words, if you happen to be one of those "certain married individuals living apart," you are head of household, period.

[Bees Knees]

Section 7703 which applies to married individuals living apart says the taxpayer must maintain “as his home a household which constitutes for more than one-half of the taxable year the principal place of abode of a child...” If there is no child living with the taxpayer, then that code section does not apply. If that code section does not apply, then a married individual living apart from his/her spouse cannot use that code section to file as unmarried.

[Pacun]

>>nothing in the statute that says this person, considered unmarried, must file head of household<<

Sorry, OldJack. I tried to give you an easy out, but you are being obstinate. Now I'm going to have to embarass you by citing the actual statute you have declared does not exist.

Fair enough.

From BEES KNEES

"Section 7703 which applies to married individuals living apart says the taxpayer must maintain “as his home a household which constitutes for more than one-half of the taxable year the principal place of abode of a child...” If there is no child living with the taxpayer, then that code section does not apply. If that code section does not apply, then a married individual living apart from his/her spouse cannot use that code section to file as unmarried."

Oldjack,

Keep in mind that the absent parent MUST file MFS once the custodial parent has filed as HH. The fact that one of the spouses is "not considered married" doesn't apply to the other spouse.

Let add más leña al fuego.

ALSO, remember that it MUST be child the one living with you. If you are married living apart from your spouse for the whole year and you support your parents, you do not qualify for HH.

[LisaAnn]

Interesting topic, but i go with Old Jack, if nothing else, in being equitable. Now if your spouse is MIA how can you even know of you can itemize or must take standard deduction? I think constructive abandonment comes to play here. In one of the cases above the person didn't even know if their spouse was still alive, hence MFS might be wrong too.

I'd go substance over form and on the rare chance of it happening, i'd deal with it on audit. On the other hand, if the irs says the spouse filed as mfs and thus you must too, congratulations, you can now find the person for child support and/or alimony.

I like your angle!

[Pacun]

I like your angle!

We all do, but...

[OldJack]

Now for your statute. Note that your quote doesn't cover the entire tax code, only those parts that specifically refer to Section 7703. That would include Sections 2b and 2c, which run through the usual requirements for HoH to give the definition of an individual who "shall be considered a head of household." Not may be or could be or ought to be, but SHALL be. In other words, if you happen to be one of those "certain married individuals living apart," you are head of household, period.

I fail to find a code sec. 7703 2( c ) that you refer to. I believe the statute I quoted above (2b) says "such individual shall not be considered as married."