Filing Status - Single or MFJ?

[Burke]

TTB 3-14 says:

"A taxpayer is unmarried in 2013 if ... the taxpayer was legally separated, according to state law, under a decree of divorce or separate maintenance." TP is separated under such a decree. Check.

"A taxpayer can file a joint return in 2013 with a spouse...if the taxpayer was married at the end of 2013, even if the taxpayer did not live with the spouse at the end of 2013." TP did not.
Check.

Therefore, can the TP and spouse file jointly if they so agree? And if there is alimony and child support involved, it is just ignored on the return?

[AccTaxMan]

I think they can file a married joint return since they were still legally married at the end of 2013. But the alimony that has been received by the wife is to be reported in the joint return, and then deducted by her husband...in the same joint return.......Doesn't make much sense...but I think it is the way to go to avoid a matching problem.

[David1980]

"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."

So if there is a separate maintenance decree the taxpayer would be unmarried. And if unmarried, you can't very well file MFJ right?

[ddoshan]

TTB 3-14 says:

"A taxpayer is unmarried in 2013 if ... the taxpayer was legally separated, according to state law, under a decree of divorce or separate maintenance." TP is separated under such a decree. Check.

"A taxpayer can file a joint return in 2013 with a spouse...if the taxpayer was married at the end of 2013, even if the taxpayer did not live with the spouse at the end of 2013." TP did not.
Check.

Therefore, can the TP and spouse file jointly if they so agree? And if there is alimony and child support involved, it is just ignored on the return?

I'm not very good with puzzles but .... your first statement says they are unmarried. So how can you then say they were married. Either they are married or not for tax purposes one would think.

[TXEA]

From your post, I am assuming they are legally separated under state law. As such.....

"A taxpayer is unmarried in 2013 if ... the taxpayer was legally separated, according to state law, under a decree of divorce or separate maintenance."

You noted the above as "The taxpayer is separated under such decree"

If they were legally separated and there is a separate maintenance order, I think they are unmarried and thus ineligible to file as married.

In Texas, they have temporary maintenance to a spouse and no concept of "legally separated" so one can be paying temporary maintenance in Texas and not be divorced or legally separated, so they are still married. Not sure what state you are in......

[Koss]

Court Order

I think you need to see the court order. An order for child support, in and of itself, is not necessarily a legal separation. It depends on what it says. An order for alimony, or spousal support, may well contain language that does in fact establish a legal separation. But it's not automatic. Not all states recognize the concept of legal separation. And even in those states that do, it is not often used.

If a client tells you he is divorced, you can usually accept that at face value. Likewise, when a client tells you that he is married, living apart from his spouse, but also tells you that no legal proceedings have been started, or tells you that she "filed for divorce in December," but nothing has actually happened yet, i.e., no court orders, then it is usually safe to assume that they are still legally married, and that's the end of the story.

Here, you have something that sounds like a court order involving child support or spousal support. You won't be able to determine their status without reading that order.

BMK

[joanmcq]

I agree with Koss. Legal separation is very rare; its usually used in cases where actual divorce is an issue, such as if the person's religion doesn't allow for divorce. And not all states allow it.

[Burke]

TP is sending me the "legal separation papers" that were drawn up. They have been living apart, separated, for 18 months now -- but not divorced. Not sure if they are having second thoughts, or why the divorce has not moved along and been granted. He is paying $x,xxx per month, allocated between alimony and child support. The TP wants to file jointly. Of course, I know why. So he gets the benefit of the itemized deductions, mtge interest, etc. and claiming the kids. House still jointly owned. She does not work. Apparently, she is willing to file jointly. He doesn't even mind splitting the refund with her, even though he is the only one paying taxes. I want to work it both ways and see what happens. Her income of alimony only will be offset by the itemized deductions, dependent exemptions and other credits. However, she is not my client.

The legal status is one thing, the IRS rules for filing are another. It appears to me from rule #2 that the option to file MFJ is there, if both are willing and agree to sign the tax return. As long as they are not divorced, they remain married until they are. I knew this was going to be a mess when he told me last year he could claim the kids, because the "court order says so."

[Burke]

I think they can file a married joint return since they were still legally married at the end of 2013. But the alimony that has been received by the wife is to be reported in the joint return, and then deducted by her husband...in the same joint return.......Doesn't make much sense...but I think it is the way to go to avoid a matching problem.

Since alimony is not reported to the IRS by either party (unless they deduct or claim it on a separate tax return) I don't see where there would be any matching by the IRS on a joint return.

[WhiteOleander]

Well, it seems to me that if he is paying alimony, the divorce is final. I don't think alimony can be deducted before the final decree. Otherwise it is separate maintenance. They can't have it both ways. They are either divorced or not. If they are legally separated, I believe the IRS considers this to be divorced.

[New York Enrolled Agent]

TP is sending me the "legal separation papers" that were drawn up.

The legal status is one thing, the IRS rules for filing are another. It appears to me from rule #2 that the option to file MFJ is there, if both are willing and agree to sign the tax return. As long as they are not divorced, they remain married until they are.

If a judge has signed the "separation papers" , they are not married under IRC §7703(a). What you call rule #2 does not apply.

If the taxpayers drew up the "separation papers" as an understanding between H & W but do not have a judicial stamp for those papers they are married.

[Burke]

I have done some research and from what I can find, there is no such thing as "legal separation" in Virginia. A couple is either married and living together; married, but living apart; or divorced. So I guess that settles it. The TP's have two choices, MFJ or MFS until such time as the divorce is final, unless one or the other can qualify for HOH under the IRS rules.

[Koss]

Separation

I have done some research and from what I can find, there is no such thing as "legal separation" in Virginia. A couple is either married and living together; married, but living apart; or divorced.

Are you looking at Virginia tax law, or Virginia domestic relations law?

A person's federal filing status is determined by their marital status under state law--not by their filing status on their state tax return.

Title 20 of the Code of Virginia says that a court may issue a "decree providing for separate maintenance."

IRS Pub. 17 says that you are considered unmarried "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" (Emphasis added).

You need to read your client's "legal separation papers."

BMK

[Burke]

I was researching Virginia domestic relations law. VA tax law requires a TP to use the same filing status as federal (except for same-sex marriages which they do not recognize) and in the situation where the spouse is living in another state. I have one of those, where they file jointly on the federal and the wife files separately in VA as a non-resident and the other state as a resident. I am fairly sure the TP in question simply has an agreement of separate maintenance. We'll see.