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Filing Status in Texas for Married but seperated

I live in Texas. My wife and I separated last year for the remaining 8 months of 2021. Living in separate homes. 

We are not legally divorced yet as of now. I know in most states you can claim Head of Household if you are not divorced but are legally separated for the last 6 months of the year. I do have a dependent by the way.

  In Texas I see that there is no law concerning legally separated, you can only be divorced. So I'm assuming that I will have to file "Married filling Sperate". Is this correct? This makes a big difference in how much taxes are owed. 



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3 Replies

Filing Status in Texas for Married but seperated

If you are married your filing status is Married - you can choose if you file separately or jointly.  Refer to





Your status is determined as of 31 Dec 2021 or the end of your tax year.


You may want to coordinate with your spouse since they may also be able to save money by filing jointly.

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Filing Status in Texas for Married but seperated

No, the Texas law does not apply to your federal tax return.  If you meet the qualifications you may file as head of HouseHold


Head of Household

Use this status if you were unmarried or considered unmarried as of December 31, 2021 and either of the following applied:

1. You paid more than half the cost of keeping up the home of your parent, whom you can claim as a dependent, for all of 2020. Your parent did not have to live with you in your home.

2. You paid more than half the cost of keeping up a home where you and one of the following lived for more than half the year:

  - Your unmarried child, adopted child, grandchild, or stepchild who is under age 19 or a full-time student under age 24 or who is permanently and totally disabled. This child does not necessarily need to qualify as your dependent or be claimed on your tax return as your dependent.

  - Your dependent married child, adopted child, foster child, or any other dependent relative. On your tax return, you claim this person as your dependent.


To file as head of household, you must: have a qualifying child and meet these requirements

* Relationship – must be the taxpayer’s child or stepchild (by blood or adoption), foster child, sibling or step-sibling, or a descendant of any of these.

* Age – on Dec 31st, must be under the age of 19, or the age of 24 if a full-time student, or regardless of age, be permanently and totally disabled.

* Residence – the child must have lived with the taxpayer for more than 6 months of the tax year. Exceptions are made the children of separated or divorced parents.  If a child was born or died during the year, they are considered to have lived with you the entire year.

* Support – refers to the child’s income, which must not have provided more than half of the child’s support for the tax year

* Joint Return – the child cannot file a joint return unless the return is filed only to claim a refund of withholdings

* Citizenship – the child must be a US citizen, US resident alien, and the child must have an SSN by the date the return is filed.

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Filing Status in Texas for Married but seperated

I respectfully disagree with your statement that "Texas law does not apply to your federal tax return."
With respect to you marital status, I believe that state law does apply. Marriage is a state regulated status, not a federally regulated status.
In Texas, (and at least some other states), you are either married, or you are not.
The questioner notes that he is still married.

Further, Quoting from https://www.divorcenet.com/resources/legal-separation-in-texas-faqs.html
"Legal Separation isn't available in Texas, so couples who would like to end their marriage formally must follow the state's divorce process. However, the court allows couples to live apart and make temporary arrangements while a divorce is pending."


Even more important is the IRS definition of marriage:  "In general. Except as provided in paragraph (b)(2) of this section regarding marriages entered into under the laws of a foreign jurisdiction, a marriage of two individuals is recognized for federal tax purposes if the marriage is recognized by the state, possession, or territory of the United States in which the marriage is entered into, regardless of domicile. "



Thus, the questioner is still married, and hence not able to file as head of household.

Agree? Disagree? I am open to comments.

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