Hoh Eic Fubar

[Possi]

State law mandates Filing Status

Possi, I can't imagine Virginia law dictating what you can or can't do on a federal return, except in cases where tax law makes deference to state law or fallout. (Examples might include community property, or interlocutory decrees, etc.) Virginia has zero authority to proclaim whether a person is eligible for a particular filing status.

Virginia MAY determine when and whether a divorce is final, and the fallout from this may affect the return. I can say that it is common in our tax prep industry to file "single" on someone who has moved out of the house. For myself, I breathe a sigh of relief when a client tells me there is a temporary order, and I don't pursue it beyond getting the question answered.

If you look at TTB 3-12, second column under Filing Status, the second bullet says "according to state law." This comes from Pub 501. On page 5 of that pub it states that state law mandates whether you are married or legally separated.

Since Virginia (a commonwealth) does not recognize legal separation, this is one instance where state law will not allow a married person who is separated, to file as "single."

If the other spouse is claiming HOH, the "single" filing status would not be challenged, as his SS# is not reflected on her return. Still, it is not legal. Some preparers here will do it anyway.

[bertrans]

See the bottom right-hand column of page 3-13.

I have question about this - should they file a 1040X or a "Corrected Return" ?
I thought it should always be the latter if the original return is changed before Apr 15.
Is changing from MFJ-to-MFS an exception to this rule?

Oh, please, not that again!!

[Snaggletooth]

Semantics

Possi - didn't intend to mislead anyone. It is not the Virginia law, but the Federal law that is determining the qualifications for filing status. The Virginia law is creating circumstances for which the federal law applies. Just an exercise in semantics, and hair-splitting I suppose.

What you are saying (I think) is that an "interlocutory decree" or "writ of separate maintenance" is not allowed under Virginia law, therefore the divorce must be final or it is of no consequence. I wonder how effective the law is in keeping husbands away from the house during the interim, but again, I'm no lawyer.

Like yourself, I know preparers who will allow Single status so long as one spouse has moved out, document notwithstanding. Never heard of anyone getting their hand slapped, but that doesn't make it correct. Wonder if an "order of protection" could be construed as an "interlocutory decree...."