Husband is in prison, how should I file

[Phillip1]

You can choose between the married filing joint, married filing separate, and (depending on how much of the year he was incarcerated) head of household filing status.

There are a couple of issues if you file as married filing joint:

1. He may have taxable income in prison. You will need to include that income on your return.

2. Prison wages are not considered earned income for the earned income credit.

3. The lack of earned income from your spouse will prevent you from taking the child care credit.

If he was incarcerated for more than the last 6 months of 2016 and you have children that live with you and are your dependents, you can be considered unmarried in order to claim head of household filing status. See the following rules for being considered unmarried from IRS Pub 501:

1. You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.

2. You paid more than half the cost of keeping up your home for the tax year.

3. Your spouse didn't live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences , later.

4. Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Home of qualifying person , later, for rules applying to a child's birth, death, or temporary absence during the year.)

5. You must be able to claim an exemption for the child. However, you meet this test if you can't claim the exemption only because the noncustodial parent can claim the child using the rules described later in Children of divorced or separated parents (or parents who live apart) under Qualifying Child or in Support Test for Children of Divorced or Separated Parents (or Parents Who Live Apart) under Qualifying Relative. The general rules for claiming an exemption for a dependent are explained later under Exemptions for Dependents .

Head of Household filing status will allow you to avoid the issues mentioned above.

[Monica01]

Also we both have w2s that are from 2018 that we haven't filed. But we just got married dec. 26th 2019. He went to prison Jan. 2, 2020. How do I go about this? No children.   

[DianeC958]

Since you have not filed for 2018 and you were not married until 2019, you and your husband will file separate returns as Single for 2018 claiming just the income you earned on your separate tax returns.  You will need to purchase TurboTax for 2018 to file those returns.

Using the desktop software you can prepare up to 5 Federal returns.  You receive one state with the cost of the program.  If you need additional states there is an additional cost.

Link to 2018 TurboTax software

The online version of TurboTax is for filing 2019 tax returns.

For 2019 you can file as Married Filing Joint even with him being in prison.

More information about Filing Statuses

@Monica01

[Baileybc]

Hi there, my husband was already incarcerated 10 yrs before we got married in october of 2019.

I have children but not biologically his. How do I go about this? Will I claim being single or married and do my taxes separately? 

[LeonardS]

You can file married filing jointly.  This will give you the largest standard deduction which will help to lower your tax liability.  You will still claim your children if you are able to answer "yes" to all of the following questions. 

• Are they related to you? The child can be your son, daughter, stepchild, eligible foster child, brother, sister, half brother, half sister, stepbrother, stepsister, adopted child or an offspring of any of them. 

• Do they meet the age requirement? Your child must be under age 19 or, if a full-time student, under age 24. There is no age limit if your child is permanently and totally disabled. 

• Do they live with you? Your child must live with you for more than half the year, but several exceptions apply. 

• Do you financially support them? Your child may have a job, but that job cannot provide more than half of her support. 

• Are you the only person claiming them? This requirement commonly applies to children of divorced parents.  

This link Rules for Claiming a Dependent on Your Tax Return has information you may find helpful. 

[Mmanti7]

My husband has w2's from 2019 and we are filing jointly. Can I efile?

[JohnW222]

@Mmanti7

Yes, you can e-file, but there are steps you'll need to go through.

You'll e-file the return as normal through TurboTax.

You can sign the electronic return for him, but prior to doing that, you'll need a valid power of attorney, which your husband needs to sign.  Here's the IRS's Form 2848, Power of Attorney.

THEN, you'll need to send both the signed Form 2848 and the IRS' Form 8453, U.S. Individual Income Tax Transmittal for an IRS e-file Return to the IRS.  On Form 8453, you'll check the second checkbox, for "Form 2848, Power of Attorney and Declaration of Representative."  There's no signature requirement on Form 8453.  The mailing address for these items is on page 2 of Form 8453.

CAUTION:  When you e-file your return, do not include a copy of the return with the Form 2848/8453 package you're sending.  It could become detached from the forms you're sending in, the IRS could process it as an original return, and all kinds of problems could ensue.