Separate Maintenance

[Oxtrainer]

Agree or disagree?
A taxpayer can file single if he has a decree of separate mainenance
filed thru the courts and signed by a Judge.

Is there a difference between legal separation and decree of separate maintencne?

Opinions solicited. Thank You

[solomon]

I don't believe so

and although still legally married, for tax purposes they are not considered married and of course neither can remarry.

[S T]

Filing Status

This link might help you. It is posted for California so you would have to check your t/p state regulations.

http://www.moschettilaw.com/lawyer-attorney-1119693.html

It is rare that married couples file for legal separation rather than an actual divorce as the filing fees are the same and would have to be duplicated to obtain dissolution, but every now and then you come across one that only wants the "legal separation with a separate maintenance decree".

I have always been under the impression, that if in fact the t/p did file the appropriate papers and was granted "legal separation " through the court system, it would qualify for the t/p to file as single, rather than a married separate filing. You would have to see the paper work to see if it was a "legal separation with a separate maintenance decree" which then would allow the t/p to file single, or H/H if qualified. IRS states that a "community estate" can be terminated by "divorce or legal separation".

You can find more information on Google " legal separation with or vs separate maintenance".

Sandy

[JG EA]

This discussion might help

https://www.thetaxbook.com/forums/showthread.php?t=2312&highlight=legal+separation

[S T]

Good Find

JG
I didn't search to see if there were old posts---so good find and good information.

As pointed out, we all need to look to our State laws. In Calif, usually, if the "legal separation papers have been filed with the court and the judge signed them, then we can file as a Single t/p. Rarely happens here because of the "double" filing fees, court costs and attorney fees. The costs are the same regardless of legal separation vs dissolution, so if t/p files for legal separation and then later decides dissoultion, they have the pleasure of paying for the transaction twice!

Sandy

[JG EA]

Hi ST,

Because I asked the question originally it was easy to remember. I have since called my state and asked them, had the client talk to an attorney, and called NATP. All agreed that the client could not file as Single since they lived as married and the "decree" was more like a financial agreement (pre or postnuptial) than the intended situation discussed in pub 17.

[S T]

More

So if the t/p and spouse file for legal separation and separate maintenance and receive the court's blessing, however, they still continue to "live together" then neither would qualify to file "Single".

So, if the other scenario is that t/p and spouse file for legal separation and separate maintenance and do hold "separate residences", would it not qualify for the parties to file single?

Sandy

[solomon]

Sec. 7703(a)(2)

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

[Oxtrainer]

Separate Maintenance

In ref to Solomons and Sandys posts. Solomons seems very blunt and clear for
the Federal. Could this mean that the Federal and state could be under different
filing status. Appreciate all the responses but it seems like in Solomons quote that
all Separate Maintence decrees could be Single but if a condition violates state law
then what?