In WA State, one of the marriage partners is "not a tribal member" and the other is a member of an Indian tribe, can they file separately?

[enginecaptain]

One partner in the marriage is NOT a member of an Indian tribe, the other is a member of an Indian tribe, both live in Washington State. Would this fact exclude them from filing separately?   The tribal member's income is taxed much differently and much lower than the non-tribal member and I'm wondering if this precludes them from a separate filing, or must they file jointly? 

[DanielV01 · Accepted solution]

Can they file separately?  Yes.  The tribal status (or lack of tribal status) does not prevent the couple from filing separately.  However, the real question is whether the Native American's tribal status has an effect on Washington's community property statute.  That answer is a big maybe.  It would depend if the couple is living on Sovereign Tribal land or not.  

This can be complicated, but Washington's community property law basically states that a married couple splits all of their community property 50/50.  Community property, to simplify, is basically the income and other property that a married couple might acquire after they are married.  However, Washington still recognizes that a couple, even after getting married, could still have separate property.  For example, if, after marriage, one spouse receives a gift or an inheritance that is not in both spouse's names, it is separate property.  Likewise, if one spouse resides in a separate property state, the property acquired in that state is also considered to be separate property in Washington.

The tribal situation becomes interesting because the tribe is located within Washington state borders.  However, if, because of tribal sovereignty, the Native American spouse is not subject to Washington state law, then the property they acquire (their income) is separate property under Washington law, provided that the tribe does not recognize Washington's community property statute, and instead, uses a separate property determination.  You would need to consult with the local tribal law to get the specific answer for the couple in question.

This is only to determine Federal income.  Washington does not have a state income tax, so for Washington state, filing a joint or separate return makes no difference.  But if they are filing separate returns for their Federal returns, they want to determine if they are required to follow Washington's Community Property Laws (which requires the couple to split their income and tax withholdings 50/50), or if the Native's tribal status allows his/her income to be treated as separate property, allowing each spouse to claim the income and withholdings belonging separately to each.