MARRIED FILING SEPERATE IN A COMMUNITY PROPERTY STATE - ACTIVE DUTY MILITARY

Forum|Forum|2 months ago
May 13, 2026
1 reply
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I lived separately from my husband during ALL of 2025. I currently reside in Texas which is a Community Property State. I have been living in Texas for the past 3 years, however my home of record is Florida. I own a home in Texas and I also have a Texas drivers license. I DO NOT OWN A HOME IN FLORIDA. The home was purchased during our marriage and we were married for 7 years. I recently divorce in March of 2026. Since we were married for all of 2025, I'm aware that I do need to file a Married Filing Separatee (MFS) tax return.

1) Do I still have to file Form 8958 since we lived apart for ALL of 2025?

2) Am I exempt from filing Form 8958 since my Home of Record is Florida?

3) If all applies, is their a work around from filing Form 8958 (for example an EXCEPTION for Military employees)?

4) Do I qualify for Community Property Laws Disregarded stated in Publication 555 page 8 OR Spouses living apart all year rule on page 8 of publication 555?

I am still Active Duty and both of us still reside in Texas (currently divorce as of March 2026)

JotikaT2

Employee Tax Expert

There are a few factors to consider so the answer will depend.

The state taxing agencies typically will look at the overall factors for your domicile, even though both states you mention do not have state income taxes. Because you appear to have established permanent residency within Texas, have purchased a home within this state, and resided in it for several years, you appear to be domiciled within Texas. Therefore, it appears you would not meet the exemption from filing Form 8958 even if your home of record is in Florida. Page 2 and 3 of Publication 555 does provide all of the items that are taken into account when determining domicile.

However, you may be able to qualify for an exception as you mentioned for filing Form 8958, but you must meet all of the following items as mentioned in Publication 555, pages 9 and 10. Essentially, if you and your former spouse lived apart for the entirety of 2025, then your separate income is taxable only to the spouse who earned it.

You must also meet the additional criteria:

You aren't filing a joint return
You both had earned income during the year
And neither of you have transferred any earned money between each other, either directly or indirectly.

You would still need to complete Form 8958, even if the living apart exceptions apply, if you may have other unearned income and deductions that would still apply under the Community Property rules as reflected here.

As far as being in the military, there is not an exception for active military pay if you do not meet the exceptions mentioned above.

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