Filing Status Question

[S T]

My taxpayer filed for legal separation through the court 2/1/10 - however, the husband remained in the house until 7/23/10. Two Children.

With legal separation filed, even though the husband was still living in the house (in a separate room) can Spouse claim Head of Household with one of the children?

Sandy

[AJsTax]

No

plain and simple the rules are there to prevent that type of cheating by taxpayers. He must not have spent one night in the house for any reason the last half of the year. If you want to get right down to the strict interpretation, even if he had his own house but he stayed over one night on a visit, that would blow the HoH option.

[Larmil]

plain and simple the rules are there to prevent that type of cheating by taxpayers. He must not have spent one night in the house for any reason the last half of the year. If you want to get right down to the strict interpretation, even if he had his own house but he stayed over one night on a visit, that would blow the HoH option.

Does husband being in the house negate the legal separation?

[Jesse]

Does husband being in the house negate the legal separation?

That would be my question too. Wouldn't the status as of 12/31/10 factor in for a legal separation or divorce? If it is a true legal separation I think HofH would be a correct filing status. If he they are in the process of divorce and he moved out before the divorce is final w/out a legal separation I would say MFS or MFJ.

[AJsTax]

Nope

he must meet both qualifications for her to file HoH. Must not live in the house any of the last six months of the year, Plus have legall seperation.

[Jesse]

She would still be considered unmarried for the whole year as long as on the last day of the year she is legally separated, but not head of household because he was not out of the home the last six months.

So she could still be single - not MFS correct?

[RitaB]

Not necessary to be legally separated

he must meet both qualifications for her to file HoH. Must not live in the house any of the last six months of the year, Plus have legall seperation.

It is not necessary that they have a legal separation for her to file HOH. It IS necessary that they lived apart the last six months of the year.

See Pub 17, under "Considered Unmarried".

[RitaB]

Yes, I think so

She would still be considered unmarried for the whole year as long as on the last day of the year she is legally separated, but not head of household because he was not out of the home the last six months.

So she could still be single - not MFS correct?

Yes, I believe so. Whew. What a mess, huh?

[taxmandan]

She would still be considered unmarried for the whole year as long as on the last day of the year she is legally separated, but not head of household because he was not out of the home the last six months.

So she could still be single - not MFS correct?

Not true, you are confusing the criteria for HOH with actual status. If they have not divorced, they are still married and file MFJ or MFS, unless they meet the exception for HOH. No single status until the divorce if final. TTB pg.3-14.

[Jesse]

Not true, you are confusing the criteria for HOH with actual status. If they have not divorced, they are still married and file MFJ or MFS, unless they meet the exception for HOH. No single status until the divorce if final. TTB pg.3-14.

I do agree with the no HofH status, however, I'm not totally convinced she cannot file single if indeed it is a legal separation.

http://www.irs.gov/publications/p501/ar02.html#en_US_2010_publink1000220721

Marital Status
In general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.

Unmarried persons. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree.

State law governs whether you are married or legally separated under a divorce or separate maintenance decree.

[BP.]

No single status until the divorce if final. TTB pg.3-14.

TTB 3-12- Single.

[JG EA]

As I learned on this board (and with subsequent research after learning this) that a legal separation may or may not be a qualification for Single status. Basically,there can be other types of legal separation. One is for financial separation. But if they live together and are not divorced they can only file as MFJ or MFS.

[S T]

MFS vs Single

What "muddies the waters" on this client is that wife filed for legal separation Feb 2010 - husband stayed in the house (separate rooms) until he was physically removed for Domestic Abuse in July 2010.

Doesn't qualify for HOH as far as I can determine, due to the July 2010 date.

Still am unable to determine if T/p (Wife) would qualify for Single,

I am still leaning toward MFS - reviewing Calif rules

Sandy

[New York Enrolled Agent]

What "muddies the waters" on this client is that wife filed for legal separation Feb 2010 - husband stayed in the house (separate rooms) until he was physically removed for Domestic Abuse in July 2010.

Still am unable to determine if T/p (Wife) would qualify for Single,

You say she filed for legal separation.

§7703 contains in part:
For purposes of part V of subchapter B of chapter 1 and those provisions of this title which refer to this subsection —

(1) the determination of whether an individual is married shall be made as of the close of his taxable year; except that if his spouse dies during his taxable year such determination shall be made as of the time of such death; and

(2) an individual legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married.

Filing of the papers doesn't satisfy this code section. Some states provide for a "separation agreement" that determines child support and maintenance during a preliminary period. To qualify under §7703, a judge must have signed a decree of legal separation.

[S T]

Thanks NYEA,
The wife has the signed legal separation signed by the judge Feb 2010, and also has the separate maintenance agreement and child custody/support issues. She has changed attorneys and they are trying to modify the separate maintenace agreement and child support/custody issues, along with the property settlement for the final decree of divorce which hopefully will occur in 2011.

From a Calif Attorney "The ability to file a single return is available if the parties are divorced on December 31 or if they have obtained a decree of legal separation by December 31. If they have a decree of legal separation, they are considered unmarried for tax purposes and they cannot file a joint return. You ask to see the judgment and not take your clients’ word for it"

Calif website addresses more issues on the "not qualifying of HOH" which seems to address more the MFS and HOH filing status than it does the issue to qualify as single. The trigger of concern was the fact that the husband stayed in the "household" until July 2010.


So now I am feeling more confident in filing the wife as single with one dependent - still an issue with the other dependent - but I am not going to address that now - The filing status has been difficult enough!


Sandy