I have lived separately the whole year and we just file for divorce in Jan. it will be final in Feb. can I file as legally separated in this case?

[xmasbaby0]

"legally separated" is not a filing status.

If you were legally married at the end of 2023 your filing choices are married filing jointly or married filing separately.    Or.....maybe.....if you lived apart for at least the last six months of 2023 and you are the custodial parent of the children, you may be Head of Household.

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

If you qualify as Head of Household, when you enter your marital status (single or married filing separately) into MyInfo, and then enter your qualifying dependent, TurboTax will offer HOH as your filing status.

Married Filing Jointly is usually better, even if one spouse had little or no income. When you file a joint return, you and your spouse will get the married filing jointly standard deduction of $27,700 (+$1500 for each spouse 65 or older)  You are eligible for more credits including education credits, earned income credit, child and dependent care credit, and a larger income limit to receive the child tax credit. 

If you choose to file married filing separately, both spouses have to file the same way—either you both itemize or you both use standard deduction. Your tax rate will be higher than on a joint return.

 Some of the special rules for filing separately include: you cannot get earned income credit, education credits, adoption credits, or deductions for student loan interest. A higher percent of your Social Security benefits may be taxable. Your limit for SALT (state and local taxes and sales tax) will be only $5000 per spouse. In many cases you will not be able to take the child and dependent care credit. The amount you can contribute to a retirement account will be affected. If you live in a community property state, you will be required to provide additional information regarding your spouse’s income. ( Community property states:  AZ, CA, ID, LA, NV, NM, TX, WA, WI)

 If  you are using online TurboTax to prepare your returns, you will need to prepare two separate returns and pay twice since with online, you get one return per fee.

https://ttlc.intuit.com/questions/1894449-married-filing-jointly-vs-married-filing-separately

https://ttlc.intuit.com/questions/1901162-married-filing-separately-in-community-property-states

https://ttlc.intuit.com/questions/1894449-is-it-better-for-a-married-couple-to-file-jointly-or-separ...

[DoninGA]

If you are legally separated according the law of your state or you have a court ordered separation you can file your tax return as Single or Head of Household if you are eligible for HOH filing status.

[Opus 17]

@DoninGA 

This requires caution and expert tax advice from the taxpayers own professional.  During my own separation, I reviewed the tax court cases for the state of New York, and it was universally the tax court’s position that being legally separated in New York did not entitle the taxpayer to file as single.

if I recall correctly, the main thrust of the argument was that a legal separation is voluntary, and the parties can reconcile without penalty, therefore, separated couples are not considered “unmarried” by the IRS, even if the separation is supervised by the court.  New York does have a version of legal separation that does not allow the parties to reconcile, and is permanent and equal to a divorce in all respects except that the parties can’t remarry.  This version of separation is a holdover from days long past when divorce was socially and religiously frowned upon, but nobody uses it today. 

A person who is legally married, but has lived apart from their spouse for at least six months and provides care in their home for a qualifying child dependent can file as head of household. But I would not recommend that a legally married person file as single without getting competent advice from a professional tax advisor who will assist them if they are audited.

@melanie-smith 

If you are legally married as of December 31, I believe that you should file as married filing jointly, or married filing separately. You can always file jointly when you are married if you both agree, even if you live apart, but this means linking your finances with your future ex. Filing separately helps you separate your finances, although you may owe more income tax. I would not recommend filing as single without your own professional tax advisor’s assistance. 

[DoninGA]

Thanks @Opus 17 as always for your timely information

[Opus 17]

I obviously can’t speak to the laws of every state, but it was my experience that the Tax Court’s  analysis of what is “considered unmarried” was much more strict than the instructions suggest.  (I think I even posted it here and discussed it with other experts, but that was 12 years ago and those posts are long gone.)

[Opus 17]

I believe this article covers the cases I was talking about.
https://www.floridabar.org/the-florida-bar-journal/divorcing-spouses-can-file-income-tax-returns-as-...