Question

Can I file married and separate & my husband file head of household if we are not legally divorced.?

"My husband and I were separated from Feb 0f 2008 thru March of this year, & I lived with my elderly mother. I maintained my mailing address at our marital residence but did not live there. We also maintained & still maintain a joint checking account but my earnings were not deposited into that account as I also had a separate, individual checking account solely in my name, I did not regularly pay household bills out of my separate account. I would make cash deposits into our joint checking account to strictly pay my auto note & insurance.



Based on the fact that we lived apart for the majority of 2008, and with the help of tax prep software, my husband filed head of household, claiming our one minor child who lived there with him the entire year, & I filed married filing separate with no dependents, not claiming my elderly mother as I did not contribute to her household income or pay for her care, nor did I pay "rent" to her.



My husband & I recently reconciled, in March of this year, but when we filed our taxes this April, he believed it would be accurate if we filed the way we have, me as married/separate & him as head of household. He is getting back a little under $400 & I had to pay $70. We have been married 17 years & have always filed joint but because of our separation, we filed this way but now I have doubts & am curious if we should amend our filings? Or should we just wait to see what IRS wants us to do?



THANK YOU VERY MUCH for any help or suggestions."

5 years ago - 6 answers

Best Answer

Chosen by Asker

Dear Mary B: Sounds like you did it right! If you did not live together the last 6 months of the year the IRS says you can be considered unmarried for tax purposes. (not single) With a child your husband can claim HOH if he has a dependent. You must file MFS and if your husband itemizes you must also itemize. The IRS may look at the checking arrangement as suspicious, but I doubt it.

The CPA is wrong... see IRS Pub 17 pages 21 & 23

This advice was prepared based on our understanding of the tax law in effect at the time it was written as it applies to the facts that you provided. Click on my profile to read more. Errol Quinn Enrolled Agent Master Tax Advisor

5 years ago

Other Answers

If you were LEGALLY married as of December 31, 2008, then you BOTH must file as married. If one of you files as married and the other files as HOH, then you are BEGGING for an IRS audit.......BOTH of you!

Source(s)

by Ryan M - 5 years ago

You could only file as Head of Household while still legally married if you lived apart for six months and supported dependent children.

by Max Hoopla - 5 years ago

You are allowed to file as married filing separately for any year that ended on a day on which you were legally married.

He is allowed to file as "head of household" for a year ending on a day on which he was legally married only if ALL of the following are true:

1. He paid more than half the cost of keeping up a home for the year.

2. A “qualifying person” lived with him in the home for more than half the year (except for temporary absences, such as school). However, if the “qualifying person” is his dependent parent, then they do not have to live together.

3. He paid more than half the cost of keeping up his home for the tax year.

4. You (his spouse) did not live in his home during the last 6 months of the tax year. You (his spouse) are considered to live in his home even if temporarily absent due to special circumstances.

5. His home was the main home of his child, stepchild, or foster child for more than half the year. (See Home of qualifying person , later, for rules applying to a child's birth, death, or temporary absence during the year.)

6. Either (a) he is able to claim an exemption for the child, or (b) he cannot claim the exemption only because the noncustodial parent of that child can claim the child using the rules described later in Children of divorced or separated parents under Qualifying Child or in Support Test for Children of Divorced or Separated Parents under Qualifying Relative . The general rules for claiming an exemption for a dependent are explained later under Exemptions for Dependents .

Source(s)

by StephenWeinstein - 5 years ago

The way you filed is OK if you didn't reconcile until in 2009, since you lived apart the entire second half of 2008. Your filing you just did was for 2008.

Good luck.

by Judy - 5 years ago

The way you filed is ok, but it might not be the best way.

If you were legally married on 12/31/08, your options, based on your situation, are:

1. Husband files HOH. You file MFS
2. You both file MFS
or

3. You file MFJ.

A married couple can always file a joint return. You didn't give enough information, but I suspect that a joint return might be the best way for you.

You can amend your returns and file a joint return.

I would complete a joint return to see if that gives you a better joint refund than the way that you filed.

Source(s)

by Mark S - 5 years ago