Filing Status

[Roses4719]

I am still legally married.  My spouse moved out in 6/2/18.  We have 3 kids who live with me, and he pays no support for them.  In March 2021 he had to move out of where he was staying and ended up on the floor in my basement because he has no other options.  I filed as HOH for 2018, 2019 & 2020 since we did not live together and the children are with me 100% of the time.  For 2021, am I able to file as HOH if he is not contributing to the household income?  He is not providing any support for the kids or the house expenses.  

[ThomasM125]

You will have to file as married-separate or married-joint if your spouse lived with you during the last half of the year. It doesn't matter that he didn't contribute to your support.

[Opus 17]

Well firstly, you could file married filing jointly, if you both agree to do so.

By the black letter of the rules you can't file as HOH.  To file as HOH, it must be true that 

• "Your spouse didn't live in your home during the last 6 months of the tax year."

This doesn't give wiggle room for spouses who are no longer intimate, but share a residence for practical reasons, and it doesn't matter that your spouse doesn't financially contribute.  While you might argue that you and your spouse are different households because you live separate lives, that doesn't seem to qualify under the rules.  And I would imagine that you eat together as a family at least some of the time, and your spouse provides at least occasional supervision for the children when you need to be away from the house, so you aren't really living separate lives for purposes of this rule, even if he doesn't contribute financially. 

[Bsch4477]

Since he apparently has no or little income filing married jointly would be advantageous since you would have a greater standard deduction than if you filed HOH. 

[Roses4719]

Thank you.  We actually do live separate lives, no meals together, he doesn't watch the kids. but for legal purposes we are still married so Married Filing Separate it will have to be.

[Roses4719]

Thank you.  He does have income, but he is a financial mess, with numerous garnishments and bad credit now because of it, so he cannot afford his own place.   He is on his own for taxes 🙂