CA Legal Separation Decree but Lived Together all of 2016

[peggysioux]

Taxpayer (wife) filed for legal separation in May of 2016 with CA court will final decree stamped June 3, 2016; however, continued to live with husband all of 2016. CA Justice Department states:

"For some people, religious, economic or other reasons make a divorce undesirable. If you do not want a divorce, but you and your spouse are living apart and have no hopes of reconciling, you and your spouse can obtain a legal separation."

So to me, being they did not live apart, even though they have the document that states they are legally separated, they are still considered married. Do other tax preparers have a different take on it?

Peggy Sioux

[Rapid Robert]

So to me, being they did not live apart, even though they have the document that states they are legally separated, they are still considered married. Do other tax preparers have a different take on it?

If they have a court decree of legal separation in lieu of divorce, I'd treat it the same as divorce regardless of whether they live together or not.

[mactoolsix]

Peggysioux,

https://www.irs.gov/uac/eight-facts-about-filing-status

#3 Single filing status generally applies to anyone who is unmarried, divorced or legally separated according to state law.

Your quote:
"For some people, religious, economic or other reasons make a divorce undesirable. If you do not want a divorce, but you and your spouse are living apart and have no hopes of reconciling, you and your spouse can obtain a legal separation."
is ignoring the fact that they already have a legal separation. This quote is providing a way to obtain a legal separation and thus file as single without a divorce decree, and does not address the possibility of a legally divorced couple living together constituting a marriage.

Note that CA does not recognize common-law marriage unless it was first recognized in another State.

Mike

[tkellyesq]

Peggysioux,

https://www.irs.gov/uac/eight-facts-about-filing-status

#3 Single filing status generally applies to anyone who is unmarried, divorced or legally separated according to state law.

Your quote:
"For some people, religious, economic or other reasons make a divorce undesirable. If you do not want a divorce, but you and your spouse are living apart and have no hopes of reconciling, you and your spouse can obtain a legal separation."
is ignoring the fact that they already have a legal separation. This quote is providing a way to obtain a legal separation and thus file as single without a divorce decree, and does not address the possibility of a legally divorced couple living together constituting a marriage.

Note that CA does not recognize common-law marriage unless it was first recognized in another State.

Mike

As of 1/1/17, couples may be considered separated (in any sense of the word) even though they live together. Following the California Supreme Court's decision in Marriage of Davis (2015) 61 Cal.4th 835, which created a bright line test that said a couple living together may never be considered to be separated, the legislature added Family Code § 70 which specifically abrogates the Davis decision. Therefore living together is no longer a bar to either separation for purposes of terminating the community property regime or for purposes of legal separation.

[taxea]

there are certain areas where there are restrictions on certain deductions of divorced people how live together. Be sure you make yourself aware of them.