Head of Household/Married Filing Separate

[Bonnie]

Couple separated and living apart for over a year with one child. Wife files Head of Household and claims son which is correct. If father claims MFS will this cause problems with IRS? Can he file single if indeed still married. I have done this in past but now wondering if it's really correct?

[kamckinley]

Are they legally separated? If so, then husband can file as Single. If there is no legal separation he has to file as MFS. In Publication 504, under the HOH section it says you are considered unmarried on the last day of the tax year if you meet all the following tests: you file a separate return - a separate return includes a return claiming married filing separately, single, or head of household filing status. Given that, the husband filing as MFS shouldn't cause any problems with the wife claiming HOH.

http://www.irs.gov/publications/p504/ar02.html#en_US_2014_publink1000175821

[Koss]

Married Filing Separate

He has no choice. He must use MFS. You cannot use single if you are legally married.

kamckinley is technically correct. If they are legally separated, that is considered unmarried for tax purposes.

But legal separation can only be accomplished with a court order. Many states do not have this option, and in those that do, it is very, very rarely used.

A temporary custody order is not a legal separation. Temporary orders for child support and alimony generally are not considered a legal separation either. It is so uncommon that I don't think I would ever take a client's word for it. I would have to read the court order for myself, and maybe even talk to the attorney. It just isn't done anymore.

Either you are married or you are divorced. Until the divorce is final, you are still legally married. And if you are legally married, you cannot use the single filing status.

BMK

[ttbtaxes]

Koss is exactly right. Don't accept these, "I'm legally separated" statements from a client as they are generic in nature and do not satisfy the tax law. I have yet to see one satisfy the criteria.

[mastertaxguy]

Mfs/hoh vs. Single: Does irs ever catch up or even ask?

1. I suspect most on this forum have encountered this HOH/MFS/Single situation where there is NO legal separation in effect.
2. It seems that each tax "season" I decline a half dozen or so returns because the "separated spouse" wants to file single because the other spouse, living with the kids, files HOH.
3. I presume those half dozen or so file with someone else and learn from me NOT to say they are married but separated, and thus they file single. (Let's take as a given the separated spouse does NOT have any dependent children living with him/her).
4. Federal 1040 does NOT require an HOH filer to declare their marital status and provide the name and SS# of the other spouse (something which has always surprised me).
5. I lost a client last week (5 years) who complained that "everyone else in my shoes is filing single-why won't you do it?". He came by and rubbed his copy of the 2014 return prepared by someone else locally in my face (office not full of clients), and claimed the preparer said something about "if your wife files HOH you can file separate."
6. So my question is: does IRS ever catch up with this practice? If do, what do they do about it and when do they catch up with the "single" separated spouse?
7. For that matter, how do they know people are married or divorced?
8. Disclosure: I did take a position for two tax years, few years ago, that a spousal protection order barring my client from the former marital home and any contact with the other souse had the same effect as a legal separation. Neither I, nor my client, received any IRS correspondence. [Couple eventually got divorced]. There was a criminal domestic abuse prosecution as well.

[RitaB]

Nope

IRS has no way of knowing these people filing incorrectly as Single are really married until somebody files MFS and they connect the dots. Or somebody files Form 3949-A.