My wife and I are dual military, co-located overseas, and have different state residencies: Nevada, and Delaware

[CasonUnit]

Good Day,

We are trying to file joint, on the same account. I do not need to file for Nevada, but She needs to file for Delaware, but when I start state taxes Delaware tries to tax our joint income. Should we file separately for state and joint federal, or separately all together? Is there a way to file for Delaware on just her income on a joint file?

Thank you.

[TomD8]

For Delaware:  If your spouse files a married filing separate return and you had no Delaware source income, then you do NOT need to file a Delaware return.

[Critter-3]

She may want to look into changing her SLR to Nevada like yours so that she doesn't have to pay Delaware taxes at all.

[SteamTrain]

@Critter-3   

---

@Critter-3 wrote:

She may want to look into changing her SLR to Nevada like yours so that she doesn't have to pay Delaware taxes at all.

---

___________________________

I'm not sure the Delaware spouse can do that for a dual military couple.  Recent changes to the MSRRA allowed a civilian spouse to change to the Military spouse's SLR at any time, but I'm pretty sure that's not allowed when both spouses are in the military.   A Military person, married or not, can only change their SLR to a state they are currently posted in under a PCS.   So the military SLR Delaware spouse, in this case, would need to be PCS posted to Nevada in order to change it.  (I admit, I could be wrong, but I've hunted around for awhile now and haven't found anything specifically dealing with this yet....maybe need to hunt for awhile longer)

Certainly, a check with the post JAG office first would clear that up for this couple.

[SteamTrain]

Yeah, I found the actual legislation that was effective 31 Dec 2018.  It doesn't seem to make clear if the "spouse" making the SLR change, refers solely to a civilian spouse, and does nothing to clear up a dual-military marriage situation.   (Maybe something in the original MSRRA legislation? )

This couple should talk to their local JAG if they want to pursue a possible change in one spouse's SLR

[TomD8]

The procedure for an active duty servicemember to formally change his or her SLR hasn't changed.  The procedure is outlined in this US Army memorandum.  Note that an active duty servicemember is not permitted to change his or her SLR "for tax purposes".

https://home.army.mil/stuttgart/application/files/1415/4712/5692/HRSLR.pdf

The civilian spouse of an active duty servicemember is of course permitted to assume their spouse's military SLR for state and local tax purposes.