Divorced couple live together w/children & share bank account. Can we file single with one person claiming mortgage & other claiming head of household & both kids?

[SantanaJ]

I am legally divorced but live with my ex and our 2 children. We own a home and share a bank account. Can we each file taxes as "single"? And can I claim the mortgage interest and my ex claim head of household and both our children as dependents? My ex's income is the highest.

[DanielV01 · Accepted solution]

You are correct.  Per IRS rules, if you were divorced on December 31, 2016, you have two options to file:  Single and Head of Household (if there are qualifying dependents).  You would be allowed to file as you suggest above in this case.  You may claim the home expenses if you paid them.  Your ex, however, would not be able to claim Head of Household unless your ex paid for at least half of the household support.  Here's an FAQ on this:  https://ttlc.intuit.com/replies/3288637

This is the general rule, but there is an exception if your state recognizes common-law marriages.  Then, your situation would depend on how state law is interpreted in your case.  If this in your state your living situation is deemed a marriage, then you are not allowed to file as single individuals; you must file married (While it may seem odd that you could be considered married since you have divorced, your living together as you are could be interpreted as having remarried in some common-law states.  If you wish, you may comment on which state you live in and I can provide you with what the law says if common-law is recognized in your state)

[SantanaJ]

We live in Colorado and it does recognize common law marriages. On our paychecks we claimed "S" in 2016, but my understanding is that is irrelevant. Our deductions on paychecks do not determine filing status come tax time. Correct?

[DanielV01]

You are correct on both points.  Your paycheck has nothing to do with the filing status you end up choose, it is based off of what SUPPOSEDLY you will choose at the end of the year.  As I said in my answer, I cannot give you legal advice as to whether Colorado's law considers you married or not, but I can provide you with information.  Here is their website that specifically mentions the requirements:  <a rel="nofollow" target="_blank" href="http://www.colorado-family-law.com/common-law-marriage/colorado-common-law-marriage-requirements.htm...

I'll have to leave it to you to interpret.  If legally you are unmarried, the first part of my answer applies to you.  If legally you are considered married by December 31, 2016, you must use one of the married filing status.  If it's complicated, you may need to ask an attorney to be certain.

[jhgnag]

I'm in a somewhat similar situation.  My ex-wife and I divorced in January 2020.  I rented a house for myself and our daughter, but ex-wife has also been living here as well.  It was supposed to be temporary, but it's been a crazy year.  I pay all the household expenses, but my ex pays me half.  It sounds like I can claim Head of Household.  I'm also curious if she can as well.  I suppose it may be a challenge proving 50/50 split on expenses to the penny.  Also, do I have to pay >50% of the household expenses, or exactly 50%?

Thank you.

[xmasbaby0]

@jhgnag Filing as Head of Household also means you have to claim a dependent--and you cannot both claim the same dependent.  Only one of you can claim the child and file as HOH.  Your situation is unusual in that there is not a clearcut "custodial" parent since you all are living together.  

In situations where the parents are divorced (or never married) and the child lives with one parent more than with the other parent (at least 183 nights)  and there is a signed form 8332, then the custodial parent can file as Head of Household, get earned income credit and the childcare credit; the non-custodial parent gets the child tax credit.

Perhaps you can agree as to which of you will file as the custodial parent and file HOH---but it cannot be both of you if there is only one child to claim.

Am I Head of Household?

https://ttlc.intuit.com/questions/1894553-do-i-qualify-for-head-of-household

https://ttlc.intuit.com/questions/2900097-what-is-a-qualifying-person-for-head-of-household

[Farshay]

I divorced 2 years ago but my exwife and I have continue to live together. We have four kids and even though we legally divorced our relationship is very much as if we are still married. The divorce was more for moral reasons but we are both mature enough to live and share a life with our kids together. 

I live in New York. I'd like to continue following married filing joining but I'm not sure if I am allowed to do that anymore. Would common law allow us to do that or do I need to file something like, head of house hold?  Also, what is the best way to file? We are pretty basic I work 40 hours a week make $50k she stays home with the kids. 

[MaryK4]

Unfortunately, you cannot file as Married.  New York law does not allow common law marriage regardless of how long you have lived together.

You most likely qualify for Head of Household, and you may be able to claim your ex-wife as a dependent.  See Who can I claim as my dependent? - TurboTax.

@Farshay