My husband is filing as head of household. When I file as married filing separately can I itemize even though he will take the standard deduction?

[xmasbaby0]

Did the two of you live apart for at least the last six months of 2023?   Are the children with your spouse?  If not, he cannot file as Head of Household.   Please clarify that here.    If all of you are living together then your filing choices are married filing jointly or married filing separately.   

[jsantarlas]

We live separately in two different houses for the entire year.

My spouse has a child with his ex-wife, though this year per the divorce decree, she will claim him as a dependant.  

[xmasbaby0]

If you live apart and he has a qualified dependent then he can file as HOH. 

He cannot file HOH unless he is claiming a dependent.   You say the ex is claiming the child.   Without a qualified dependent, your spouse can only file MFS or file jointly with you. 

  If the two of you file MFS, then you follow the rules which say both of you itemize or both use standard deduction.

Information needed by your spouse:

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.

[jsantarlas]

I thought the following would apply even if he does not claim the dependant on the tax return:

1. You meet the qualifications to claim the child as your dependent, even if the other (noncustodial) parent is actually claiming the child as a dependent on their return.

And if he can claim HOH which it seems he can he would take the standard deduction.  And because he is not filing as married filing separately, would I be able to claim the itemized deduction since it doesn't appear we need to take the same deduction since he would not be filing as married filing separately?

[xmasbaby0]

Your details are slowly trickling out, so it becomes confusing.   If your spouse is the custodial parent----if the child spent at least 183 nights with him in 2023----and there is a signed agreement on form 8332----the "ex" can claim the child but your spouse retains the right to file as HOH and get earned income credit and the childcare credit.  The "ex" gets the child tax credit.

If he is filing HOH, then you can go ahead and file MFS and itemize if you want to. He can use standard deduction since he is HOH.

[jsantarlas]

Thank you very much as it has been very confusing for this first year of our marriage!

That definitely answers my question.  The software asked on my filing if both spouses with doing itemized, so I clicked yes, even though he is taking that standard deduction, so wanted to make sure I was correct.

Thank you again!

Jill

[xmasbaby0]

Best Wishes!