Can I file as single if I'm married but does not live with my spouse for over 6yrs and is not legally seperated or divorce?

[jerry2000 · Accepted solution]

If you were legally married as of 12/31/2013, your choices are Married Filing Jointly, if your spouse agrees,  or Married Filing Separately, unless you meet the qualifications to be "considered unmarried", in which case you could file as Head of Household. The requirements are:

Considered Unmarried

To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests

1. You file a separate return

2. You paid more than half the cost of keeping up your home for the tax year.

3. Your spouse did not live in your home during the last 6 months of the tax year. Your

spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances.

4. Your home was the main home of your child, stepchild, or foster child for more than half the year.

5. You must be able to claim an exemption for the child. (There are some exceptions to this rule, see IRS Pub 17, Chapter 2 and 3) You can find Pub 17 at this link

http://www.irs.gov/pub/irs-pdf/p17.pdf

[amandagayle201]

If my spouse is in prison and were not together how do I file 

[BobinCT]

You can still file a joint return with your spouse if they agree and if you can find a way to get their signature.  If they had minimal income in 2017, filing joint will give you the best result.  Living together is not a requirement to file a joint return.

[taxuser_3]

i am currently going through the same situation I wanna know if you filed as single  or did you have to file a joint?

[BobinCT]

You cannot legally file as "single".  Your choices are joint (with your spouses agreement), Married Filing Separately, or, if you have dependent relatives living with you, Head of Household.

[Irene2805]

No - You cannot file as single.  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. 

You are considered married for the whole year if, on the last day of your tax year, you and your spouse are married and living apart, but not legally separated under a decree of divorce or separate maintenance.

If you live apart from your spouse and meet certain tests, you may be able to file as head of household even if you aren't divorced or legally separated. If you qualify to file as head of household instead of married filing separately, your standard deduction will be higher. Also, your tax may be lower, and you may be able to claim the earned income credit. See Jerry2000's excellent explanation of the requirements for Head of Household status in his answer above.

@taxuser_3

[Chall0123]

What if I filed single and should have filed married but separated?

[JohnB5677]

No, you may not file as single because you weren't legally divorced from your spouse or considered unmarried at the end of the tax year.

There are certain restrictions on Married Filling Separate that are not included in the Single filing Status.  If the IRS determines that you have filled improperly, they will asses the tax and penalties for any calculated shortfall.

[booneh57]

I want to know the same thing. What qualifies as a separation decree. I have a paper signed by a judge stating how much c support, alimony, and it is checked final order

[Mike9241]

if you are not legally separated or divorced you are considered married as long as you are both alive. as married you can not file as single. Laws governing Legal Separation differ from state to state. we can't answer legal questions so consult with a lawyer as to whether that document constitutes legal separation (or make your own determination). 

.   

[Opus 17]

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@booneh57 wrote:

I want to know the same thing. What qualifies as a separation decree. I have a paper signed by a judge stating how much c support, alimony, and it is checked final order

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It depends on your state law, we can't help you.

I can tell you a story about New York, because I researched this for myself.  In NY, you can get a separation agreement that specifies support, custody, non-interference, and so on, without a divorce.  The Tax Court ruled that this is not sufficient to be considered "unmarried" for tax purposes, partly because separations are voluntary and reversible, even if they are under a judge's supervision.  New York does have a type of permanent and final legal separation, but as a practical matter, no one uses it anymore, since it has all the costs and downsides of a divorce but does not have the upside that you are free to marry again.  It seems to be a legal holdover from a time when divorce was rare, difficult to obtain and frowned on by society and most religions.  The form of legal separation that is most common today in NY does not qualify a taxpayer to file as "unmarried" for the IRS.

I have not researched all 50 states, but I am not aware of any state where their particular form of legal separation actually meets IRS requirements to be "considered unmarried."  Maybe there are some states, I don't know, and we can't advise you.  You would need to speak to an attorney or enrolled agent who has experience with your state laws.