Accountant is telling my ex-wife she can file Single for 2021 since we have lived apart for over a year prior to finalizing our divorce in March 2022?

[Went2TheBeach]

We both fully maintain our own separate residences is different states (she in South Carolina, me in Florida) and we have no dependents living with either of us.  I filed my taxes with Married Filing Separately status and they were accepted, while her accountant filed her taxes with a Single status and they were rejected.  Her accountant is telling her I need to amend my return changing to Single status so her return will be accepted.  Her accountant said even though our divorce was not finalized until this year, that the IRS will allow us to both file as Single since we did not live together all of last year.  Is this correct?

[macuser_22]

If married you cannot file single unless you have a formal court approved legal separation decree with separate maintenance (about the same as alimony) and can only be undone with a court order.   

Only a few states have legal separation.   Very few people use that any more since divorce is usual easier and has no advantages over divorce.

Your account should stick to accounting and not give tax advice.

[Opus 17]

This is tricky. A person can file as single if they are “considered unmarried.“  In theory, certain legal separations might qualify to be “considered unmarried“ depending on the laws of the particular state. In practice, I have never actually seen a state law that was regarded by the IRS as valid for this purpose, and I am aware of 2 Tax Court cases in New York and New Jersey that specifically disallow this type of being “considered unmarried“ based on the specific laws of New York and New Jersey.

Her accountant is mistaken in at least one regard; even if you amended your tax return, it will never update the IRS database in time to allow your ex to e-file. She will always have to print her tax return and file by mail.

I would not file as single in your case unless you have a qualified legal opinion that you are “considered unmarried” according to the laws of the state where your separation decree was signed or approved by the court.  You need to do what is legal for you according to your own best judgment or the judgment of your legal advisers, and your ex-wife can take care of her own problems.

[Mike9241]

ask your divorce lawyer if you used one. you do not say that you are legally separated - would require a court decree just like a divorce. 

[Critter-3]

A person can NOT file as single if they are “considered unmarried.“  The fact that you did not live together would only qualify the ex for Head of Household if they had qualifying children.  The accountant is wrong if you did not have a "legal separation" agreement in place with the courts.  Stand your ground ... you did nothing wrong.  Read the IRS publication 501 under the FILING STATUS section for the rules.  https://www.irs.gov/forms-pubs/about-publication-501

[SweetieJean]

Ask her accountant to provide you with an appropriate legal citation for being able to file Single

[Opus 17]

@SweetieJean 

No. Her taxes are not his problem. And a legal opinion from her accountant is worthless to him, because her accountant will not defend him in court or pay his penalties.  

[Opus 17]

@Critter-3 

I think you are mistaken. The regulations and publication 501 do allow a married person to file as single if they are “considered unmarried“ according to their state law. The problem is that almost no one under a legal separation is considered unmarried under state law.

Unmarried persons.

You are considered unmarried for the whole year if, on the last day of your tax year, you are either:

• Unmarried, or

• Legally separated from your spouse under a divorce or separate maintenance decree.

State law governs whether you are married or legally separated under a divorce or separate maintenance decree.

Single

Your filing status is single if you are considered unmarried and you don't qualify for another filing status. To determine your marital status, see Marital Status, earlier.

[Went2TheBeach]

Thanks to all of you that replied so far - much appreciated!

[TomD8]

@Went2TheBeach --

If any uncertainty remains, the IRS offers a simple online questionnaire for determining your correct filing status:

What Is My Filing Status? | Internal Revenue Service (irs.gov)

[Opus 17]

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@TomD8 wrote:

@Went2TheBeach --

If any uncertainty remains, the IRS offers a simple online questionnaire for determining your correct filing status:

What Is My Filing Status? | Internal Revenue Service (irs.gov)

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I don't think that's much help, have you actually tried it?  It puts "legally separated" with "single", but it does not include the qualification that "State law governs whether you are married or legally separated under a divorce or separate maintenance decree."

I wonder what an auditor would do if the taxpayer tried to use the online tool as an excuse.

Here is a good legal analysis explaining why almost no separation is actually sufficient to file as single.  It includes the Tax Court cases I have researched previously. 

https://www.floridabar.org/the-florida-bar-journal/divorcing-spouses-can-file-income-tax-returns-as-...