Spouse owes child support can I file separately and claim our kids

[abagley8]

My disabled spouse that has no earned income and collects SSDI over $8000 for the year owes back child support.  If I file form 8375 I will have to wait 11 weeks to get the full refund.  If instead I file married filing separately would I still be able to claim the full child tax credit? An suggestions to maximize return and minimize wait time?  (We were counting on the tax return to help with moving expenses coming  up soon)  TIA

[DanielV01 · Accepted solution]

Yes, you may choose to do this.  When you file as Married Filing Separately, the Earned Income Credit is disallowed, but not the Child Tax and Additional Child Tax Credit.  So, you may in fact choose to file Separately.  Your refund will not be offset towards his back Child Support if you personally were not responsible for it.

As you recognize, you may not get quite as many benefits filing separately; however, since he has no taxable income the IRS may not have been very favorable from an Injured Spouse claim.  You certainly will get any refund filing separately faster than if you file Injured Spouse.  And if filing Injured Spouse will result in a greater benefit, you may still amend the return to claim such later.

[CastroLia]

My husband owes old child support and he is paying for it adding the amount to the monthly child. He is working now but I am not. My daughter and I recently moved here so she got her CRBA last year. I would like to claim child tax credit so I don’t know if I can file married but separately even when I didn’t work. We just don’t want that money goes to child support payment. We need the money to pay other expenses 

[DMarkM1]

Yes, you can file as married separately to receive the child tax credit on your return.  You will need to put in $1 of interest earned so that you show income to allow the return to be filed. 

Here is an IRS FAQ with more information on the Child Tax Credit.  See topic questions D4 and B10.  

[Lakoda0805]

Question. What if u have been claim joint for the last 20 years and ur spouse lives with u just don't have any income can I file separately 

[Vanessa A]

Yes, you can file separately at any point even when you live together.

However, if one person does not have any income, then tax wise, you will make out better by filing a joint return.  When you file separate returns, there are several tax credits and deductions you cannot take such as education credits, and the earned income credit.  Also, the standard deduction is half what it would be if you file a joint return.  This means if only one person is working and makes $50,000 a year, if they file as married filing jointly, they will only pay taxes on $19,8000 whereas, if they file separately, they will pay taxes on $35,400 of their income. 

Overall, if you are in the same household, when it comes to strictly a tax perspective, in general, it is better to file a joint return. 

How Should You and Your Spouse File Taxes? Married Filing Jointly vs Separately