Incarcerated What's the Consenses?

[dan doshan]

When you have one spouse or the other incarcerated for any length of time do you allow the other spouse with a child to file as HH? What's the consenses of the folks on this board. Is there some magic length of time. A short period I could see as no. Husband sentenced to 1 year on 6/1/2011. Longer sentence then, I don't really know but would lean toward HH as being OK.

There is various information as to when a child is incarcerated or institutionalized. But again they really do not give much of hint as to what length of time might be relevant.

Not sure how to spell consenses with an s or a c! Too lazy to look up.

[JohnH]

It's consensus, but given the topic, consenses is an interesting play on spelling of the word...

[DonPriebe]

... Husband sentenced to 1 year on 6/1/2011 ...

I don't see the need for any special rules in this case. The couple has not lived together for the last six months of the year, so the wife may be considered as unmarried for the purposes of filing as HoH. [Assuming other usual restrictions are met.]

[FEDUKE404]

Furthermore

I don't see the need for any special rules in this case. The couple has not lived together for the last six months of the year, so the wife may be considered as unmarried for the purposes of filing as HoH. [Assuming other usual restrictions are met.]

You might even have an "a-band-on-de spouse" situation here ??

FE

[Lion]

Mfj

Why not married filing jointly?

[dan doshan]

I used to be a good spellur .... once had a good memory also ... was going to mention something else but forgot.

[dan doshan]

I don't see the need for any special rules in this case. The couple has not lived together for the last six months of the year, so the wife may be considered as unmarried for the purposes of filing as HoH. [Assuming other usual restrictions are met.]

Yes but what about the temporary absence consideration. Can you ignore it here but in another situation you would or could not, such as if the spouse was working overseas, or in the military or whatever. The pubs and cases touch on situations where a child is institutionalized, sometimes for a very long period, yet depending on the circumstances it can or will be considered a temporay absence, allowing the parent to claim the child as a qualifying child. Or the situation where the mother was in jail but was allowed the EIC because her absence was considered temporary and she would return home when released.

Just saying that if one can completely ignore the temporary absence consideration then a lot of spouses could file as unmarried HH which in many cases could result in a much better tax result. Husband away for the last 14 months for whatever reason, Wife files as HH getting EIC etc.

[dan doshan]

special circumstances such as illness, education, business, vacation, or military service. It must be reasonable to assume that the absent person will return to the home after the temporary absence

I know they don't specifically mention being incarcerated as a temporary absence but it does seem to indicate that the above are not the only situations that would be considered a temporary absence.

[S T]

I have been "googling" but have arrived at much the same info as has been posted.
I am thinking the "key" is the "temporary absence"

Would it be reasonable that if the spouse were incarcerated for less than a year it would meet the "temporary absence sp circumstance " but if longer than a year it would not meet the "temporary absence sp circumstance" and then you can use the "Married Individuals Considered Unmarried" (Added later) See notation below -

Based on your post Dan the wife has met the HOH requirements of "not living in the household for the last 6 months"

Hmm,

****Just found this under irs.gov - innocent spouse article - item 25 http://www.irs.gov/individuals/artic...109283,00.html which at least gives a reference to temp absence and incarceration

Living apart does not include a spouse who is temporarily absent from the household. A temporary absence exists if it is reasonable to assume that the absent spouse will return to the household, or a substantially equivalent household is maintained in anticipation of such a return. A temporary absence may include absence due to incarceration, illness, business, vacation, military service, or education.

Sandy

[Lion]

But, MFJ is even better as she gets her husband's exemption. Why don't you want her to file MFJ?

[taxea]

One can never be sure that even an inmate with a sentence of life without parole has gotten out so if the spouse is still married to him I would consider this a temporary absence. Were she to get a legal separation that would make a difference.

[Snaggletooth]

99 years

Yes, serving a sentence of 99 years is a "temporary absence."

Coulda been worse. Coulda been for life.

[snowshine]

I don't know about other states, but here in NC a spouse cannot use a period of incarceration as a separation for purposes of later filing for divorce unless first filing a formal separation agreement: in other words, the incarcerated spouse is considered to still be living in the house and MFJ/MFS are the only options. I'd be interested in how other states handle the situation.

[RitaB]

Did you say something, Other Rita?

Why not married filing jointly?

But, MFJ is even better as she gets her husband's exemption. Why don't you want her to file MFJ?

OK, I understand getting a signature might be difficult, but it is a temporary absense, as Sandy pointed out, so no HOH. Appears that MFJ is a win-win, even if she is married to a loser. Two out of two Rita's agree.

[dan doshan]

It was a coworkers client and they asked me what I thought about it. I suppose there could be good reasons a spouse may not want to file MFJ. Who knows what the husband was up to. It also might be difficult to get his OK and signature I don't know. Just wondered how others here dealt with these situations and if anybody had any definitive answers.