Hi,
My husband lives in California and I live in Indiana. Last year we filed married filing separate for both federal and state. We had a baby this year. How should we file? The baby lives with me in Indiana. My husband also has a dependent who lives with him in California. Who files head of household? Thank you
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FIRSTLY, per IRS guidelines, MARRIED COUPLES only have TWO available filing statuses: Married Filing Jointly, and Married Filing Separately (there are special rules for taxpayers living in Community Property States).
SECONDLY, if you and your spouse are NOT together anymore, and are NOT LEGALLY SEPARATED NOR DIVORCED at the end of the year, per IRS Regulations, you MUST File as either: Married Filing Jointly, or Married Filing Separately.
THIRDLY, The IRS considers you married for filing purposes until you get a final decree of divorce or separate maintenance.
FOURTHLY, per IRS instructions, if you're married or legally separated, you may be eligible to file as Head of Household if ALL of these apply:
LASTLY, married couples, not legally separated, with TWO DIFFERENT HOUSEHOLDS and TWO DIFFERENT DEPENDENTS, technically speaking BOTH qualify to be Head of Household, but the above is NOT really the intent for which the Head of Household was established. In addition, Temporary Absences due a job assignment, studying or training/upskilling, etc., is NOT considered living apart. Context and/or intent is very important in the eyes of the IRS, should the IRS decide to challenge your position in this case scenario.
This is a GREAT QUESTION as it pushes the boundaries of a Gray Area about the Head of Household Filing Status, but if ALL the above requirements are met, technically you both can qualify as Head of Household.
Filing taxes after divorce or separation
Publication 504 (2023), Divorced or Separated Individuals
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