Can I file separately if my separated spouse files jointly?

[huyclef]

In California, if I file jointly but my estranged wife files married but separately is that legal? We are both retired and living off of our 401k (she has a pension, too). She says she would have a massive tax benefit from itemizing her deductions, whereas my 401k is modest.

[DaveF1006]

No, you would either need to file jointly or separately, but not both. If she is adamant about filing Married Filing Separately, you will need to do likewise. Since she itemizes her deductions, you will need to do the same even though your Standard Deduction may be more than your itemized deduction. 

Keep in mind, California is a community property state, so both of you will need to file in accordance to community property rules. Please read this TurboTax article for more information.

Married Filing Separately in community property states

[Edited 03/20/22|11:01 am PST]

@huyclef

[xmasbaby0]

No, what you want to do is not legal.    If you both agree to file married filing jointly you can do that, or you both file married filing separately.    

If you were legally married at the end of 2024 your filing choices are married filing jointly or married filing separately.

Married Filing Jointly is usually better, even if one spouse had little or no income. When you file a joint return, you and your spouse will get the married filing jointly standard deduction of $29,200 (+ $1550 for each spouse 65 or older)  for 2024. You are eligible for more credits including education credits, earned income credit, child and dependent care credit, and a larger income limit to receive the child tax credit. 

If you choose to file married filing separately, both spouses have to file the same way—either you both itemize or you both use standard deduction. Your tax rate will be higher than on a joint return.

 Some of the special rules for filing separately include: you cannot get earned income credit, education credits, adoption credits, or deductions for student loan interest. A higher percent of your Social Security benefits may be taxable. Your limit for SALT (state and local taxes and sales tax) will be only $5000 per spouse. In many cases you will not be able to take the child and dependent care credit. The amount you can contribute to a retirement account will be affected. If you live in a community property state, you will be required to provide additional information regarding your spouse’s income. ( Community property states:  AZ, CA, ID, LA, NV, NM, TX, WA, WI)

 If  you are using online TurboTax to prepare your returns, you will need to prepare two separate returns and pay twice since with online, you get one return per fee.

https://turbotax.intuit.com/tax-tips/marriage/should-you-and-your-spouse-file-taxes-jointly-or-separ...

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