MA preparers please

[taxmom34]

my first time encountering a legally seperated person. is legally seperated the same as divorced in mass? can i file single on both fed & state? i need to do some research for HH status, 18 yr old daughter lives with him but worked a few months over the $3600 amount,
any advice would be appreciated

[Kram BergGold]

MA preparer here

To the best of my knowledge MA does not have legal seperations. I have always been told this is the case. I have never seen one in 35 years of doing taxes and as far as I know the law has not changed.

[taxmom34]

but

client says went to court 4/15/08 and got legal seperation. wife left 1/7/2007. guess i'll have to ask for the document he got from court.

[Koss]

Legal Separation

Massachusetts Probate and Family Court allows one spouse to file a Complaint for Separate Support.

In the complaint, the plaintiff may assert that the spouses are living apart, and ask the court to "establish that such living apart is for justifiable cause." This type of complaint may also be used to seek custody of a child, and to ask the court to order child support or spousal support.

It is not the same as a divorce.

But if the court "establishes" the couple is living apart for justifiable cause, that may well meet the definition of legally separated under federal tax law. If it does, it means that the guy can use the filing status single.

Here's a standard form provided by Probate and Family Court:

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/documents/cjd102.pdf

I agree that you need to review the court order. The filing of the complaint alone is not sufficient.

BMK

[taxmom34]

thank you

so much, i feel that this board is a teaching tool and i am learning something new every day. thank you

[Kram BergGold]

Whoa!

I looked at the doc provided by Koss and to me it it has to do with setting up support payments. I am not a lawyer, so I won't say that it is or is not the equivilent to a legal separation. I strongly encourage you to research this more before you decide it is ok to treat that doc as a legal separation.

[Kram BergGold]

proof, no legal separation

masslegalhelp.org/domestic-violence/chapter8-separation-and-divorce

[Kram BergGold]

definition under federal law

The definition under federal law of legally separated is "legally separated under state law. So in Ma, as there is no such thing as legally separated you can't file as single on your Federal tax return if you are married, unless you qualify under the special rules about not living with spouse for more than 6 months and having children living with you.

[Koss]

Legal Separation

The website cited by Mark as “proof” that Massachusetts has “no legal separation” contains the following text:

There is no "legal separation" in Massachusetts. We do have a Complaint for Separate Support, and "separation agreements." A Complaint for Separate Support can cover most of the issues separating couples need to think about, but it does not end the marriage. A separation agreement is a written agreement signed by the husband and wife, usually filed under a Complaint for Divorce or a Joint Petition for Divorce (separation agreements are discussed in more detail at Question 8 in this section).
Most separation agreements are worked out as part of a divorce that is pending in Probate and Family Court, and are filed with the court and approved by a judge. These separation agreements then usually become part of the Probate and Family Court’s judgment, and can be enforced in this court. If you complete a separation agreement and do not file it with the Probate and Family Court, it is nothing more than a contract between you and your spouse. While it may not be a bad idea to have a contract, it is often difficult to enforce this type of contract.

It also says:

A separation agreement is a written agreement between you and your husband on how matters relating to your marriage will be resolved. The agreement should address such things as custody, visitation, child support, property division (including alimony and pensions), what will happen to the marital home, including who will own the real estate, and who will live in the marital home, tax consequences, division of debts, change of name, and protective orders. A separation agreement is good only if both spouses sign it. It usually is made part of the divorce judgment. You should get advice from an attorney before signing a separation agreement.

The website cited by Mark is published by nonprofit organization. It is not an official government website. But assuming for the sake of argument that the information is accurate, a separation agreement that is part of the Family Court’s judgment is a court order declaring that the couple is separated. The agreement spells out the terms of the separation.

Mark asserts in his post that the Complaint for Separate Support “has more to do with setting up support payments.”

According the IRS instructions for Form 1040, you can use the filing status single if:

You were never married, or
You were legally separated, according to your state law, under a decree of divorce or separate maintenance [emphasis added].

What is “separate maintenance”? Doesn’t that mean that one spouse making support payments to the other while they live apart?

The Complaint for Separate Support is an official document that is found on the website of the Massachusetts Probate and Family Court. That website says that the document is used

when one party seeks to be legally separated from his/her spouse, but does not wish to file for divorce.

Here’s the link:

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/forms.html#divorce

In my original post, I noted that the filing of the complaint alone does not establish a separation; what is needed is a court order.

I agree with Mark that it is probably a good idea to consult with a Massachusetts lawyer before making a final determination in this case.

What we have here is a website run by a nonprofit legal aid group, proclaiming that “there is no legal separation” in Massachusetts, while acknowledging that the courts recognize “separation agreements,” and that one may file a Complaint for Separate Support. Meanwhile, the official website run by the Family Court declares, in plain English, that a Complaint for Separate Support is used when one party seeks to be legally separated from his/her spouse.

I’m not an attorney, and I’m not rendering legal advice here. But if a separation agreement is filed with the court, that appears to meet the definition required for using the filing status of single. A separation is a separation. If the terms of the separation are part of an agreement, and that agreement is part of a court order, then it is a legal separation. The legal aid attorneys that wrote that website can play word games all day long, but I’d put my money on the site that is operated by the Probate and Family Court.

BMK

[Kram BergGold]

Looking at the wording

In Pub 17 it says "You were legally separated, according to state law, under a decree of separate maintanance". In MA, a Judge can sign off on a Complaint of Separate Maintanance but this does not make you legally seperated as MA does not have the concept of a legal separation in it's laws.

[taxmom34]

good discussion going on here. i talked to client again. this year he qualifies as HH, but he won't next year. but he said he did get a court separation agreement. he was given the house, car, daughter, he has to maintain health insurance for his ex, but no alimony. he agreed that lawyer told him he is getting ready to file for divorce, lawyer wants another $2200 to do it. so i told him use your refund and get it before the end of the year.

thank you all, enlightening