Publication 504: Divorced or Separated Individuals - Filing Status

Home
About Howard I. Goldstein
Other Divorce Professionals
The Process of Divorce in a Nutshell
Preparing for Divorce
Child Custody in Massachusetts
Child Support in Massachusetts
Prenuptial Agreements
Collaborative Divorce Professionals in Massachusetts
Collaborative Practice

Divorce Resources

Divorce Law Articles
Massachusetts Divorce Forms
Supplemental Rule 410
Checklist for Divorce
Separation Agreements
Parent Education Programs
Massachusetts Divorce Laws - Chapter 208
Publication 504: Divorced or Separated Individuals
Divorce Law Firm &
Divorce Attorney Directory
Divorce Resources
Divorce Terminology

New England Appellate Cases on Family Law & Divorce

Connecticut Divorce Law Cases
Maine Divorce Law Cases
Massachusetts Divorce Law Cases
New Hampshire Divorce Law Cases
Rhode Island Divorce Law Cases
Vermont Divorce Law Cases

Appellate Cases Family Law & Divorce in Other States

Divorce Cases in Other States

Back to Publication 504: Divorced or Separated Individuals Main Menu

Filing Status

Your filing status is used in determining whether you must file a return, your standard deduction, and the correct tax. It may also be used in determining whether you can claim certain deductions and credits. The filing status you can choose depends partly on your marital status on the last day of your tax year.

Marital status. If you are unmarried, your filing status is single or, if you meet certain requirements, head of household or qualifying widow(er). If you are married, your filing status is either married filing a joint return or married filing a separate return. For information about the single and qualifying widow(er) filing statuses, see Publication 501.   For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.

Unmarried persons. You are unmarried for the whole year if either of the following applies.

1. You have obtained a final decree of divorce or separate maintenance by the last day of your tax year. You must follow your state law to determine if you are divorced or legally separated. Exception. If you and your spouse obtain a divorce in one year for the sole purpose of filing tax returns as unmarried individuals, and at the time of divorce you intend to remarry each other and do so in the next tax year, you and your spouse must file as married individuals.
2. You have obtained a decree of annulment, which holds that no valid marriage ever existed. You must file amended returns (Form 1040X, Amended U.S. Individual Income Tax Return) for all tax years affected by the annulment that are not closed by the statute of limitations. The statute of limitations generally does not end until 3 years after the due date of your original return. On the amended return you will change your filing status to single, or if you meet certain requirements, head of household.

Married persons. You are married for the whole year if you are separated but you have not obtained a final decree of divorce or separate maintenance by the last day of your tax year. An interlocutory decree is not a final decree.

Exception. If you live apart from your spouse, under certain circumstances you may be considered unmarried and can file as head of household. See Head of Household , later.

Married Filing Jointly. If you are married, you and your spouse can choose to file a joint return. If you file jointly, you both must include all your income, exemptions, deductions, and credits on that return. You can file a joint return even if one of you had no income or deductions.

TIP If both you and your spouse have income, you should usually figure your tax on both a joint return and separate returns to see which gives you the lower tax.

Nonresident alien. To file a joint return, at least one of you must be a U.S. citizen or resident at the end of the tax year. If either of you was a nonresident alien at any time during the tax year, you can file a joint return only if you agree to treat the nonresident spouse as a resident of the United States. This means that your combined worldwide incomes are subject to U.S. income tax. These rules are explained in Publication 519, U.S. Tax Guide for Aliens.

Signing a joint return. Both you and your spouse must sign the return, or it will not be considered a joint return.

Joint and individual liability. Both you and your spouse are responsible, jointly and individually, for the tax and any interest or penalty due on your joint return. This means that one spouse may be held liable for all the tax due even if all the income was earned by the other spouse.

Divorced taxpayers. If you are divorced, you are still jointly and individually responsible for any tax, interest, and penalties due on a joint return for a tax year ending before your divorce. This responsibility applies even if your divorce decree states that your former spouse will be responsible for any amounts due on previously filed joint returns.

Relief from joint liability. In some cases, a spouse will be relieved of the tax, interest, and penalties on a joint return. You can ask for relief no matter how small the liability.   There are three types of relief available.

1. Innocent spouse relief, which applies to all joint filers.
2. Separation of liability, which applies to joint filers who are divorced, widowed, legally separated, or who have not lived together for the 12 months ending on the date election of this relief is filed.
3. Equitable relief, which applies to all joint filers who do not qualify for innocent spouse relief or separation of liability and to married couples filing separate returns in community property states.

Innocent spouse relief and separation of liability apply only to items incorrectly reported on the return. If a spouse does not qualify for innocent spouse relief or separation of liability, the IRS may grant equitable relief. Each of these kinds of relief is different, and they each have different requirements. You must file Form 8857 to request any of these kinds of relief. Publication 971 explains these kinds of relief and who may qualify for them. You can find more information at www.irs.gov

Tax refund applied to spouse's debts. The overpayment shown on your joint return may be used to pay the past-due amount of your spouse's debts. You can get your share of the refund if you qualify as an injured spouse.

Injured spouse. You are an injured spouse if you file a joint return and all or part of your share of the overpayment was, or is expected to be, applied against your spouse's past-due federal tax, state income tax, child or spousal support, or federal non tax debt, such as a student loan. An injured spouse can get a refund for his or her share of the overpayment that would otherwise be used to pay the past-due amount. To be considered an injured spouse, you must:

1. File a joint return, and
2. Have reported income (such as wages, interest, etc.), or
3. Have made and reported tax payments (such as federal income tax withheld from wages or estimated tax payments), or claimed the earned income credit or other refundable credit, and
4. Not be legally obligated to pay the past-due amount.

Note. If the injured spouse's permanent home is in a community property state, then the injured spouse must only meet (4) above. For more information, see Publication 555, Community Property.

CAUTION Refunds that involve community property states must be divided according to local law. If you live in a community property state in which all community property is subject to the debts of either spouse, your entire refund can be used to pay those debts.

If you are an injured spouse, you must file Form 8379 to have your portion of the overpayment refunded to you. Follow the instructions to the form.   If you have not filed your joint return and you know that your joint refund will be offset, file Form 8379 with your return. You should receive your refund within 14 weeks from the date the paper return is filed or within 11 weeks from the date the return is filed electronically.   If you filed your joint return and your joint refund was offset, file Form 8379 by itself. When filed after offset, it can take up to 8 weeks to receive your refund. Do not attach the previously filed tax return, but do include copies of all Forms W-2 and W-2G for both spouses and any Forms 1099 that show income tax withheld. Generally, you must file Form 8379 no later than 6 years from the date you are notified of the offset (3 years if the offset was used to pay federal tax debt). A separate Form 8379 must be filed for each tax year to be considered.

CAUTION An injured spouse allocation is different from an innocent spouse relief request. An injured spouse uses Form 8379 to request an allocation of the tax overpayment attributed to each spouse. An innocent spouse uses Form 8857 to request relief from joint liability for tax, interest, and penalties on a joint return for items of the other spouse (or former spouse) that were incorrectly reported on the joint return. For information on innocent spouses, see Relief from joint liability , earlier.

Married Filing Separately. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. For information on exemptions you can claim on your separate return, see Exemptions , later.

Community or separate income. If you live in a community property state and file a separate return, your income may be separate income or community income for income tax purposes. For more information, see Community Income under Community Property , later.

Separate liability. If you and your spouse file separately, you each are responsible only for the tax due on your own return.

Itemized deductions. If you and your spouse file separate returns and one of you itemizes deductions, the other spouse will not qualify for the standard deduction and should also itemize deductions.

Table 1. Itemized Deductions on Separate Returns This table shows itemized deductions you can claim on your separate return whether you paid the expenses separately with your own funds or jointly with your spouse. Caution: If you live in a community property state, these rules do not apply. See Community Property.

Dividing itemized deductions. You may be able to claim itemized deductions on a separate return for certain expenses that you paid separately or jointly with your spouse. See Table 1.

Separate returns may give you a higher tax. Some married couples file separate returns because each wants to be responsible only for his or her own tax. But in almost all instances, if you file separate returns, you will pay more combined federal tax than you would with a joint return. This is because special rules apply if you file a separate return. These rules include the following items.

1. Your tax rates will increase at income levels that are lower than those for a joint return filer.
2. Your exemption amount for figuring the alternative minimum tax will be half of that allowed a joint return filer.
3. You cannot take the credit for child and dependent care expenses in most cases.
4. You cannot take the earned income credit.
5. You cannot take the exclusion or credit for adoption expenses in most instances.
6. You cannot take the credit for higher education expenses (Hope and lifetime learning credits), the deduction for student loan interest, or the deduction for tuition and fees.
7. You cannot exclude the interest from qualified savings bonds that you used for higher education expenses.
8. If you lived with your spouse at any time during the tax year:
   1. You cannot claim the credit for the elderly or the disabled,
   2. You will have to include in income up to 85% of any social security or equivalent railroad retirement benefits you received, and
   3. You cannot roll over amounts from a traditional IRA into a Roth IRA.
9. Your income limits that reduce the child tax credit, retirement savings contributions credit, itemized deductions, and amount you can claim for exemptions will be half of the limits allowed a joint return filer.
10. Your capital loss deduction limit is $1,500 (instead of $3,000 on a joint return).
11. Your basic standard deduction, if allowable, is half of that allowed a joint return filer. See Itemized deductions, earlier.

Joint return after separate returns. If either you or your spouse files a separate return, you can change to a joint return any time within 3 years from the due date (not including extensions) of the separate returns. This applies even if either of you filed as head of household. Use Form 1040X.

Separate returns after joint return. After the due date of your return, you and your spouse cannot file separate returns if you previously filed a joint return.

Exception. A personal representative for a decedent can change from a joint return elected by the surviving spouse to a separate return for the decedent. The personal representative has one year from the due date (including extensions) of the joint return to make the change.

Head of Household. Filing as head of household has the following advantages.

1. You can claim the standard deduction even if your spouse files a separate return and itemizes deductions.
2. Your standard deduction is higher than is allowed on a single or married filing separate return.
3. Your tax rate may be lower than it is on a single or married filing separate return.
4. You may be able to claim certain credits (such as dependent care credit and earned income credit) you cannot claim on a married filing separate return.
5. Income limits that reduce your child tax credit, retirement savings contributions credit, itemized deductions, and the amount you can claim for exemptions will be higher than the income limits on a married filing separate return.

1. You are unmarried or " considered unmarried " on the last day of the year.
2. You paid more than half the cost of keeping up a home for the year.
3. A " qualifying person " lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the " qualifying person " is your dependent parent, he or she does not have to live with you. See Special rule for parent, on this page, under Qualifying person.

TIP Special rules may apply for people who had to relocate because of Hurricane Katrina. For details, see Publication 4492.

Considered unmarried.  You are considered unmarried on the last day of the tax year if you meet all the following tests.

1. You file a separate return.
2. You paid more than half the cost of keeping up your home for the tax year.
3. Your spouse did not live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences, later.
4. Your home was the main home of your child, stepchild, or eligible foster child for more than half the year. (See Qualifying person , beginning on this page, for rules applying to a child's birth, death, or temporary absence during the year.)
5. You must be able to claim an exemption for the child. However, you meet this test if you cannot claim the exemption only because the non custodial parent can claim the child using the rules described later in Special Rules for Divorced or Separated Parents under Exemptions for Dependents . The general rules for claiming an exemption for a dependent are shown later in Table 3.

CAUTION If you were considered married for part of the year and lived in a community property state, special rules may apply in determining your income and expenses. See Publication 555 for more information.

Nonresident alien spouse. If your spouse was a nonresident alien at any time during the tax year, and you have not chosen to treat your spouse as a resident alien, you are considered unmarried for head of household purposes. However, your spouse is not a qualifying person for head of household purposes. You must have another qualifying person and meet the other requirements to file as head of household.

Keeping up a home. You are keeping up a home only if you pay more than half the cost of its upkeep. This includes rent, mortgage interest, taxes, insurance on the home, repairs, utilities, and food eaten in the home. This does not include the cost of clothing, education, medical treatment, or transportation for any member of the household.

Qualifying person. Table 2 shows who can be a qualifying person. Any person not described in Table 2 is not a qualifying person.   Generally, the qualifying person must live with you for more than half of the year.

Table 2. Who Is a Qualifying Person for Filing as Head of Household? 1 Caution. See the text of this publication for the other requirements you must meet to claim head of household filing status.

• 1 A person cannot qualify more than one taxpayer to use the head of household filing status for the year.
• 2 The term " qualifying child " is defined under Exemptions for Dependents, later. Note. A child may be your qualifying child for head of household filing status even if the child is not a qualifying child for whom you can claim an exemption. This applies if the child is the qualifying child of the non custodial parent under the rules described under Special Rules for Divorced or Separated Parents under Exemptions for Dependents , later.
• 3 This person is a qualifying person if the requirements described under Married child are met.
• 4 The term " qualifying relative " is defined in Table 3, later.
• 5 See Special rule for parent for an additional requirement.
• 6 A person who is your qualifying relative only because he or she lived with you all year as a member of your household is not a qualifying person.
• 7 If you can claim an exemption for a person only because of a multiple support agreement, that person is not a qualifying person. See Publication 501.

Special rule for parent. If your qualifying person is your father or mother, you may be eligible to file as head of household even if your father or mother does not live with you. However, you must be able to claim an exemption for your father or mother. Also, you must pay more than half the cost of keeping up a home that was the main home for the entire year for your father or mother. You are keeping up a main home for your father or mother if you pay more than half the cost of keeping your parent in a rest home or home for the elderly.

Death or birth.  You may be eligible to file as head of household if the individual who qualifies you for this filing status is born or dies during the year. You must have provided more than half of the cost of keeping up a home that was the individual's main home for more than half of the year, or, if less, the period during which the individual lived.

Example. You are unmarried. Your mother, for whom you can claim an exemption, lived in an apartment by herself. She died on September 2. The cost of the upkeep of her apartment for the year until her death was $6,000. You paid $4,000 and your brother paid $2,000. Your brother made no other payments towards your mother's support. Your mother had no income. Because you paid more than half of the cost of keeping up your mother's apartment from January 1 until her death, and you can claim an exemption for her, you can file as a head of household.

Temporary absences. You and your qualifying person are considered to live together even if one or both of you are temporarily absent from your home due to special circumstances such as illness, education, business, vacation, or military service. It must be reasonable to assume that the absent person will return to the home after the temporary absence. You must continue to keep up the home during the absence.

Kidnapped child. You may be eligible to file as head of household, even if the child who is your qualifying person has been kidnapped. You can claim head of household filing status if all the following statements are true.

1. The child must be presumed by law enforcement authorities to have been kidnapped by someone who is not a member of your family or the child's family.
2. In the year of the kidnapping, the child lived with you for more than half the part of the year before the kidnapping.
3. You would have qualified for head of household filing status if the child had not been kidnapped.

1. The year there is a determination that the child is dead, or
2. The year the child would have reached age 18.

• The child is your qualifying child (as defined under Exemptions for Dependents, later).
• The child does not file a joint return, unless the return is filed only as a claim for refund and no tax liability would exist for either spouse if they had filed separate returns.
• The child is a U.S. citizen or resident, U.S. national, or a resident of Canada or Mexico. (This requirement is met if you are a U.S. citizen and the child is an adopted child who lived with you all year as a member of your household.)

More information. For more information on filing as head of household, see Publication 501.

Back to top