Can my spouse file as head of household so I can file married filling separately?

[VolvoGirl]

Why do you want to file separate?  Joint is usually the best way to file.  You lose several credits filing MFS.  Do you live together?

[prettynancy789]

We do not live together but we are still legally married

[DanielV01]

It's legal to file that way if you do live separate and your spouse has a dependent.  You can also file joint if you choose as long as you are not legally separated.

[DanielV01]

It depends.  This is a legal status only if you were living apart for more than the last 6 months of the year, your spouse has a qualifying dependent living with him/her for at least 6 months of the year, and provided at least half of the household support. However, if you did not live apart for the entire last 6 months of the year, this type of filing would be illegal and fraudulent.  Here is an FAQ with additional information on filing Head of Household:  https://ttlc.intuit.com/replies/4206137

[Longmorw]

I have a question about filing separately and filing jointly. If my wife filed separately already on her tax return, would I be able to file my tax return jointly? So I can qualify for all the tax benefits such as education etc.

[DoninGA]

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@Longmorw wrote:

I have a question about filing separately and filing jointly. If my wife filed separately already on her tax return, would I be able to file my tax return jointly? So I can qualify for all the tax benefits such as education etc.

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No, you cannot file a joint tax return if your spouse filed as Married Filing Separately.  You can only file your tax return as Married Filing Separately or if you are eligible as Head of Household.

See this TurboTax support FAQ for Head of Household when married - https://ttlc.intuit.com/community/married/help/can-a-married-person-claim-head-of-household-filing-s...

[bz_92]

So if one spouse does qualify for Head of Household what filing status does the other spouse use? Would they use Married Filing Separately? Or could they use Head of Household also?

[Opus 17]

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@bz_92 wrote:

So if one spouse does qualify for Head of Household what filing status does the other spouse use? Would they use Married Filing Separately? Or could they use Head of Household also?

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If you are married, you can only use head of household if all these conditions are true:

1. you lived apart from your spouse for all of the last 6 months of the year,
2. you paid more than half the cost of keeping up your own home for the entire year,
3. you provided care in your home for a qualifying person, usually your child dependent who lived in your home with you more than half the nights of the year.

The same rules apply to both spouses.  Spouse #2 might also qualify to file as HOH if they meet the same tests.  (This means that, among other things, the spouses must have at least two children, and at least one of the children lived with spouse #2 more than half the year while another child lived with spouse #1 more than half the year.)  It is unusual, but not impossible, for this to be the case. 

If spouse #2 does not qualify to file as HOH, then spouse #2 must file as married filing separately.  

[peterpumpkineater]

What happens in a community property state when one spouse files Head of Household? (yes, verified they are eligible to do so) When both filing married filing separately we are required to input half of each of our incomes on both returns. When filing head of household it doesn't ask for spouses income. So how does the other spouse file? and how do they report the income?

[DaveF1006]

It depends. If you are both living together and married, Head of Household filing is not permitted.  You both need to file married filing separately to split half the income. Please refer to this IRS publication for more information.

Considered Unmarried

To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.

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 the child as a dependent. However, you meet this test if you can't claim the child as a dependent 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 a child as a dependent are explained, later, under Dependents .

[peterpumpkineater]

living apart for over 2 years and have a dependent. 

[Opus 17]

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@peterpumpkineater wrote:

living apart for over 2 years and have a dependent. 

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This is a complicated area and I don't think any of us are experts.  You should start by reading IRS publication 555.

https://www.irs.gov/publications/p555#en_US_202001_publink1000168814

The situation is governed by state law.  If you have community property or community income even though you are separated, you must still divide it according to state law.

A marriage can have both community income and separate income.  For example, investments you own before you get married might be separate income and only reported on your MFS return, while income from your job during the marriage is part of the marital community and is divided equally even if one spouse doesn't work.  

The question you need to ask of your state laws is "when does the marital community end?"  If the marital community ends on separation, then your income is no longer community income.  For example, if you separated on July 1, 2019, then you might have community income before that date and separate income after that date.  Then for 2020, all your income would be separate income.

But if your state has different rules on when the marital community ends, or if some of your joint property is still considered community property even when you are separated, then you have to follow those state laws.  Again for example, suppose you and your spouse own a rental building together.  Even though you are separated and your job is now considered "Separate income", the income from the rental may still be "community income". It all depends on your state laws. 

You may need the help of a tax preparer in your state. 

[Opus 17]

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@peterpumpkineater wrote:

living apart for over 2 years and have a dependent. 

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At the federal level, you can file as head of household.  But what income you report as "your income" on the HOH return may be complicated, as I indicate in my other reply. 

[natestaff26]

Married living in 2 different states for more than a year.  Dependants live with me. She has a job and student loans interest but we don't talk so she's not going to give me numbers.  Turbo tax is telling me to file HOH but what does she file?.