Can my wife and I both file as head of household if we are separated but not yet officially divorced?

[jburatti]

My wife and I are separated and living apart in different households. Technically we are still officially married.  If we both file as married filing separately, can we both file as head of household?

She filed her taxes back in April as Married filing separately and Head of household, yet still 5 months later she has not received her refund.  I was also going to file the same, but submitted an extension because I owed taxes.  

So in this scenario can we both file HoH?  Would this or my extension on filing be what's delaying her refund?  

[VolvoGirl]

Do you have  any children?  You need a qualifying dependent to file HOH.  

Do you qualify for Head of Household?
https://ttlc.intuit.com/community/family/help/do-i-qualify-for-head-of-household/00/25539

Who is a qualifying person for Head of Household?
https://ttlc.intuit.com/community/family/help/what-is-a-qualifying-person-for-head-of-household/00/2...

[NCperson]

@jburatti  we need some more details about the situation as not enough information was provided. 

in order to file HOH and you are still legally married, you must

1) have lived apart for the last 6 months of the year or be LEGALLY* separated as of 12/31

2) you and your spouse are filing separate returns

3) you provide more than 50% of the household expenses

4) your home is the main home for your bio, step- or foster child and the child must have lived with you for at least 6 months of the year. (no other relatives will meet this condition - it is specific to your children). 

5) you claim the child as a dependent. 

you must meet ALL FIVE conditions.  you asked if both can file HOH - depends on the circumstances.  It is also possible that neither of you can file HOH. 

The typical case (but may not be yours' as more information is required) is the children live with Mom while the Dad lives alone.  Mom can meet the 5 requirements and files HOH; Dad does not and files MFS. (dad can not file SINGLE as he is still married). 

Also, you spouse did not file HOH and MFS - it was one or the other. 

does that help? 

* in some states (e.g. NC), you can be separated, but not LEGALLY separated.  Legal separation requires a court order; not just two people who say they are "legally separated"

[jburatti]

Yes we have 2 of our own and she has one from a separate relationship.  We agreed that she can claim her son and one of ours together and I would claim our other child, even though they all live with me full time.

[jburatti]

Here are the answers to the questions:

1) have lived apart for the last 6 months of the year or be LEGALLY* separated as of 12/31

 - We started living separately in July 2023.  We live in NJ and there is no such thing as "legal separation" in this state

2) you and your spouse are filing separate returns

 - Yes we are not filing Married filing jointly

3) you provide more than 50% of the household expenses

 - As we live in separate households, yes we both technically provided more than 50% of the expenses for each of our own households.

4) your home is the main home for your bio, step- or foster child and the child must have lived with you for at least 6 months of the year. (no other relatives will meet this condition - it is specific to your children). 

 - All 3 kids have lived with me since the separation.  Prior to the separation (which was basically 6 months also) we all lived together.  We had a verbal agreement that she can claim 2 of them on her separate return to get the child dependent credit and I would only claim one.

5) you claim the child as a dependent. 

 - As we each are claiming at least one child as a dependent, does this one count?

Based on the answers to the questions can we both then file HoH?

As for the second part of my question, She did file HoH claiming 2 dependents.  but still has not received her refund.  She is running into dead ends trying to figure out why and cannot get in physical contact with anyone regarding this.  As stated, I filed an extension and will be submitting soon.  Can/would this extension I filed be delaying her refund from processing?  

Thinking back now, it probably would have been better to just file MFJ.  We probably would have still gotten a refund this way but maybe not as much as her separately filed refund.  Since her return is still not yet complete, would there be any way to amend hers this and just file mine with the extension as MFJ?

[NCperson]

@jburatti since all three children live with you, you are the custodial parent.  She is the non-custodial parent.

Since they all live with you, she can NOT claim HOH.  She can not meet the requirement that the children lived with her as their main home and they lived with her for at least 6 months. She must file MFS.  She can not meet the requirements of item 4 that I laid out above. 

When you state that you two agreed that she can claim two of the children, she is claiming them as the non-custodial parent for the sole purpose of claiming the child tax credit.  That is all.  The children do not meet the IRS technical definition of a 'dependent'.  You should provide her with form 8332 to document that your are permitting her to claim the CTC.  CTC is worth up to $2,000 per child under the age of 17.

From what you state, you MAY be able to file HOH.  However, you did not indicate whether you were separated for the last 6 months of 2023 (or were legally separated based on court papers presented to a judge).  Otherwise it appears you meet the requirements of the other items I laid out above.

if you two lived apart the last 6 months of the year or were legally separated YOU can file HOH.  If not, you must file MFS.  

Lastly, if she filed HOH and you file HOH, it is quite possible that the IRS holds up your return because the same dependents with the same SSNs will be listed on both returns; the IRS will know there is a mistake.  The same dependent can't qualify HOH filing on two tax returns in the same year.  In fact, if you attempt to efile, it may reject because the same SSN has already been used as a dependent on another return. (if she claimed one of the children for the sole purpose of claiming CTC and that was properly entered on her tax return, that would not constitute using the same SSN on two tax returns). 

She may have to amend and your return may 'hang' until that occurs (and you may have to paper file if the efile rejects).

does that make sense? 

[NCperson]

@jburatti ugh - I just saw your responses....so let me address your new post

this is simple.  Because you did not live apart for at least 6 months of 2023, neither of you can file HOH. You both must file MFS or MFJ.   (I assume you were living together on 7/1/23 and do not meet the 183 day rule of separation). 

As far as claiming the children, now that HOH is not possible.... your agreement is fine.  Since the children lived with each of you for more than 6 months (her: 6.5 months; you 12 months), you two can agree who claims the children if in fact MFS is the way you two decide to file.  The whole issue of form 8332 is moot. 

if she filed HOH, she should amend to MFS.

if she filed MFS, she can amend that to MFJ, if you two agree, and add you and your income and the remaining child to that amendment.

if she filed MFS and she chooses not to amend, then it is fine the way it is. You file MFS and claim the 3rd child. 

does that help?  again I assume the date you two separated into different households was after July 1.  As that is critical to what I wrote, please be VERY specific to the EXACT date you separated on any response. 

[rjs]

@jburatti 

If you and your wife agree to file jointly, she can amend her tax return to MFJ no matter what filing status she used originally. On the amended return she adds you as the spouse, adds your income and other information, and adds the third child as a dependent. You do not file a tax return of your own. You just ignore the extension that you filed. (If you made a payment with the extension, you include that on the joint amended return).

You will probably get a larger total refund for the two of you by filing MFJ.

But she should not file an amended return until the processing of her original return has been completed and she has received the refund.

[Opus 17]

@jburatti 

You are correct that NJ does not have a legal separation that is recognized by the IRS as eligible for using the HOH status.  The requirement to live apart for the last 6 months of the year means starting on or before July 1.  If you separated after July 1, 2023, then neither one of you is eligible to file as HOH.

Regarding claiming dependents, the rules for 2023 are different than the rule for the future.  For 2023, both parents are eligible to claim all 3 children as dependents, since the children lived with both parents for more than half the year (from January 1 through the separation date in July).   If you can agree on how the children should be claimed, then either of you can claim them.  If you can't agree, the first tiebreaker is which parent did the children live with the greater number of nights.  This is you per your answer.  But for 2023 only, your verbal agreement is sufficient.  (Note that when filing, each one of you will be asked about dependents and there are some questions about a custody agreement.  Each of you should only list the dependents you agree to claim, and don't even mention the other children.  Answer NO to any questions about custody agreements, because those questions only pertain to court orders between parents who live apart more than half the year.)

HOH is not allowed for either spouse.  

If you can agree, you can file married filing jointly and claim all 3 children together.  This usually results in lower taxes, but you may not want to entangle your finances.  If you don't agree to file jointly, then each of you musts file MFS.  That's what you need to do now.  If your spouse filed HOH, that problem is between them and the IRS.  

Starting in 2025, the rules on claiming dependents will focus almost exclusively on how long the children live in each home, with the parent where the children lived more than half the nights being the only parent with the automatic right to claim the dependents.  See publication 501 under "special rules for children of divorced or separated parents."

https://www.irs.gov/forms-pubs/about-publication-501

[NCperson]

@Opus 17 

<<the rules for 2023 are different than the rule for the future.>>

Can I assume you mean that the rules that this couple need to follow beginning in 2024 are a different set of rules than the rules they followed in 2023 (which I concur with)? 

but the IRS rules themselves for 2023 and 2024 are (so far) the same - they are not different.

if the current living arrangement continues and marital status continues into 2024, Dad would be the custodial parent and would file HOH, claiming all three children.  Mom would file MFS as she had no qualified children.  Dad would sign form 8332 to permit Mom to claim CTC for two of the children (or however many children Dad permitted).   

[Opus 17]

@NCperson 

Right.  The rules are the same, but they way they apply to these two taxpayers (and the result) will be different for tax year 2024, because they will have been separated for the whole year (and possibly divorced).  Mainly centered on how physical custody affects dependent claims and how a court order about claiming dependents should be handled on the return.  

(If you want to really be specific, for the 2023 tax return, they follow the tiebreaker rules for "Qualifying Child of More Than One Person" on page 15, and for 2024 and future they will follow "Children of divorced or separated parents (or parents who live apart)" starting on page 13.)