If my husband is incarcerated in a different state than me is he a resident of that state or the state with his permanent address?

[Fern · Accepted solution]

There are many issues when filing a tax return if your spouse is incarcerated.  The IRS considers you to be still married even when one spouse is incarcerated. You can choose to file as “Married filing jointly” or “Married filing separately.” The filing status you choose will determine your eligibility for some tax breaks and credits that can increase your refund or decrease the amount you owe.

According to the Internal Revenue Service, if you and your spouse didn't reside together at any time during the last six months, you may be eligible to file “Head of Household.” So, if your spouse has been in prison for more than six months and you have a qualifying child, you may be eligible to file “Head of Household” and claim the Earned Income tax credit. This refundable credit can add several hundreds, maybe even thousands, of dollars to your refund. Filing "Head of Household" also means that you will be solely responsible for any taxes owed or receive any refund due.

Generally speaking, for state tax purposes, your spouse’s state of residence is the same as it was before incarceration.

[edspain57]

The example and explanation are indeed true and my wife was able to file as "Head of Household." The inmate is, however, under the state where he is incarcerated at as a resident of that state because he is under the care of the department of corrections for that state for the time they are incarcerated. If he/she gets out and must remain in that state, then he/she must file under that state and file, "Married filing separately." But because the other spouse must file as Head of Household they will have to itemize, which means the formally incarcerated spouse cannot take the standard deduction, which is stupid, especially if they have no income outside of SSA benefits or disability in the state that they must remain in, nor if they provide no financial support to the spouse, especially if this is different from the state the spouse resides in, and especially if there are children in the house with the spouse. This means the formally incarcerated spouse who may live in a different state than their spouse will have to utilize pay-services for their tax prep.