Publication 504: Divorced or Separated Individuals - Filing Status

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Filing Status

Your filing status is used in determining whether you must file a return, your standard deduction, and the correct tax. It may also be used in determining whether you can claim certain other deductions and credits. The filing status you can choose depends partly on your marital status on the last day of your tax year.

Marital status. If you are unmarried, your filing status is single or, if you meet certain requirements, head of household or qualifying widow(er). If you are married, your filing status is either married filing a joint return or married filing a separate return. For information about the single and qualifying widow(er) filing statuses, see Pub. 501.

For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.

Unmarried persons. You are unmarried for the whole year if either of the following applies.

  • You have obtained a final decree of divorce or separate maintenance by the last day of your tax year. You must follow your state law to determine if you are divorced or legally separated.

Exception. If you and your spouse obtain a divorce in one year for the sole purpose of filing tax returns as unmarried individuals, and at the time of divorce you intend to remarry each other and do so in the next tax year, you and your spouse must file as married individuals.

  • You have obtained a decree of annulment, which holds that no valid marriage ever existed. You must file amended returns (Form 1040X, Amended U.S. Individual Income Tax Return) for all tax years affected by the annulment that aren’t closed by the statute of limitations. The statute of limitations generally doesn’t end until 3 years (including extensions) after the date you file your original return or within 2 years after the date you pay the tax. On the amended return you will change your filing status to single or, if you meet certain requirements, head of household.

Married persons. You are married for the whole year if you are separated but you haven’t obtained a final decree of divorce or separate maintenance by the last day of your tax year. An interlocutory decree isn’t a final decree. However, individuals who have entered into a registered domestic partnership, civil union, or other similar relationship that isn’t called a marriage under state (or foreign) law aren’t married for federal tax purposes. For more information, see Pub. 501.

Same-sex marriage. For federal tax purposes, marriages of couples of the same sex are treated the same as marriages of couples of the opposite sex. The term “spouse” includes an individual married to a person of the same sex. However, individuals who have entered into a registered domestic partnership, civil union, or other similar relationship that isn’t considered a marriage under state law aren’t considered married for federal tax purposes.

Exception. If you live apart from your spouse, under certain circumstances, you may be considered unmarried and can file as head of household. See Head of Household , later.

Health care law considerations. Under the health care law, you must have qualifying health care coverage, qualify for an exemption from qualifying health care coverage, or make a shared responsibility payment.

Qualifying health care coverage (also called minimum essential coverage) includes:

  • Most coverage through government-sponsored programs (including Medicaid coverage, Medicare parts A or C, the Children’s Health Insurance Program (CHIP), certain benefits for veterans and their families, TRICARE, and health coverage for Peace Corps volunteers);
  • Most types of employer-sponsored coverage; and
  • Other health coverage the Department of Health and Human Services designates as minimum essential coverage.

Your divorce or separation may impact your responsibilities under the health care law in the following ways.

  • Special Marketplace Enrollment Period. If you lose your health insurance coverage due to divorce, you are still required to have coverage for every month of the year for yourself and the dependents you can claim on your tax return. Losing coverage through a divorce is considered a qualifying life event that allows you to enroll in health coverage through the Health Insurance Marketplace during a Special Enrollment Period.
  • Changes in Circumstances. If you purchase health insurance coverage through the Health Insurance Marketplace you may get advance payments of the premium tax credit in 2016. If you do, you should report changes in circumstances to your Marketplace throughout the year. Changes to report include a change in marital status, a name change and a change in your income or family size. By reporting changes, you will help make sure that you get the proper type and amount of financial assistance. This will also help you avoid getting too much or too little credit in advance.
  • Shared Policy Allocation. If you divorced or are legally separated during the tax year and are enrolled in the same qualified health plan, you and your former spouse must allocate policy amounts on your separate tax returns to figure your premium tax credit and reconcile any advance payments made on your behalf. The instructions for Form 8962, Premium Tax Credit, has more information about the Shared Policy Allocation.

Married Filing Jointly

If you are married, you and your spouse can choose to file a joint return. If you file jointly, you both must include all your income, exemptions, deductions, and credits on that return. You can file a joint return even if one of you had no income or deductions.

TIP: If both you and your spouse have income, you should usually figure your tax on both a joint return and separTIOwer combined tax.

Nonresident alien. To file a joint return, at least one of you must be a U.S. citizen or resident alien at the end of the tax year. If either of you was a nonresident alien at any time during the tax year, you can file a joint return only if you agree to treat the nonresident spouse as a resident of the United States. This means that your combined worldwide incomes are subject to U.S. income tax. These rules are explained in Pub. 519, U.S. Tax Guide for Aliens.

Signing a joint return. Both you and your spouse generally must sign the return, or it will not be considered a joint return.

Joint and individual liability. Both you and your spouse may be held responsible, jointly and individually, for the tax and any interest or penalty due on your joint return. This means that one spouse may be held liable for all the tax due even if all the income was earned by the other spouse.

Divorced taxpayers. If you are divorced, you are jointly and individually responsible for any tax, interest, and penalties due on a joint return for a tax year ending before your divorce. This responsibility applies even if your divorce decree states that your former spouse will be responsible for any amounts due on previously filed joint returns.

Relief from joint liability. In some cases, a spouse may be relieved of the tax, interest, and penalties on a joint return. You can ask for relief no matter how small the liability.

There are three types of relief available.

  • Innocent spouse relief.
  • Separation of liability, which applies to joint filers who are divorced, widowed, legally separated, or who haven’t lived together for the 12 months ending on the date election of this relief is filed.
  • Equitable relief.

Married persons who live in community property states, but who didn’t file joint returns, may also qualify for relief from liability for tax attributable to an item of community income or for equitable relief. See Relief from liability for tax attributable to an item of community income , later, under Community Property.

Each kind of relief has different requirements. You must file Form 8857 to request relief under any of these categories. Pub. 971 explains these kinds of relief and who may qualify for them. You can also find information on our website at IRS.gov.

Tax refund applied to spouse's debts. The overpayment shown on your joint return may be used to pay the past-due amount of your spouse's debts. This includes your spouse's federal tax, state income tax, child or spousal support payments, or a federal nontax debt, such as a student loan. You can get a refund of your share of the overpayment if you qualify as an injured spouse.

Injured spouse. You are an injured spouse if you file a joint return and all or part of your share of the overpayment was, or is expected to be, applied against your spouse's past-due debts. An injured spouse can get a refund for his or her share of the overpayment that would otherwise be used to pay the past-due amount.

To be considered an injured spouse, you must:

  1. Have made and reported tax payments (such as federal income tax withheld from wages or estimated tax payments), or claimed a refundable tax credit, such as the earned income credit or additional child tax credit on the joint return, and
  2. Not be legally obligated to pay the past-due amount.

If the injured spouse's permanent home is in a community property state, then the injured spouse must only meet (2). For more information, see Pub. 555.

If you are an injured spouse, you must file Form 8379 to have your portion of the overpayment refunded to you. Follow the instructions for the form.

If you haven’t filed your joint return and you know that your joint refund will be offset, file Form 8379 with your return. You should receive your refund within 14 weeks from the date the paper return is filed or within 11 weeks from the date the return is filed electronically.

If you filed your joint return and your joint refund was offset, file Form 8379 by itself. When filed after offset, it can take up to 8 weeks to receive your refund. Don’t attach the previously filed tax return, but do include copies of all Forms W-2, Wage and Tax Statement, and W-2G, Certain Gambling Winnings, for both spouses and any Forms 1099 that show income tax withheld.

CAUTION: An injured spouse claim is different from an innocent spouse relief request. An injured spouse uses Form 8379 to request an allocation of the tax overpayment attributed to each spouse. An innocent spouse uses Form 8857 to request relief from joint liability for tax, interest, and penalties on a joint return for items of the other spouse (or former spouse) that were incorrectly reported on or omitted from the joint return. For information on innocent spouses, see Relief from joint liability, earlier.

Married Filing Separately

If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. For information on exemptions you can claim on your separate return, see Exemptions.

Community or separate income. If you live in a community property state and file a separate return, your income may be separate income or community income for income tax purposes. For more information, see Community Income under Community Property, later.

Separate liability. If you and your spouse file separately, you each are responsible only for the tax due on your own return.

Itemized deductions. If you and your spouse file separate returns and one of you itemizes deductions, the other spouse can’t use the standard deduction and should also itemize deductions.

Table 1. Itemized Deductions on Separate Returns

This table shows itemized deductions you can claim on your married filing separate return whether you paid the expenses separately with your own funds or jointly with your spouse.
Caution: If you live in a community property state, these rules don’t apply. See
Community Property.
IF you paid ... AND you ... THEN you can deduct on your separate federal return ...
medical expenses paid with funds deposited in a joint checking account in which you and your spouse have an equal interest half of the total medical expenses, subject to the limits, unless you can show that you alone paid the expenses.
state income tax file a separate state income tax return the state income tax you alone paid during the year.
file a joint state income tax return and you and your spouse are jointly and individually liable for the full amount of the state income tax the state income tax you alone paid during the year.
file a joint state income tax return and you are liable for only your own share of state income tax the smaller of:
  • the state income tax you alone paid during the year, or

  • the total state income tax you and your spouse paid during the year multiplied by the following fraction. The numerator is your gross income and the denominator
    is your combined gross income.
property tax paid the tax on property held as tenants by the entirety the property tax you alone paid.
mortgage interest paid the interest on a qualified home held
as tenants by the entirety
the mortgage interest you alone paid.
casualty loss have a casualty loss on a home you own
as tenants by the entirety
half of the loss, subject to the deduction limits. Neither spouse may report the total casualty loss.

1 For more information on a qualified home and deductible mortgage interest, see Publication 936, Home Mortgage Interest Deduction.

Dividing itemized deductions. You may be able to claim itemized deductions on a separate return for certain expenses that you paid separately or jointly with your spouse. See Table 1.

Separate returns may give you a higher tax. Some married couples file separate returns because each wants to be responsible only for his or her own tax. There is no joint liability. But in almost all instances, if you file separate returns, you will pay more combined federal tax than you would with a joint return. This is because the following special rules apply if you file a separate return.

  1. Your tax rate generally will be higher than it would be on a joint return.
  2. Your exemption amount for figuring the alternative minimum tax will be half of that allowed a joint return filer.
  3. You cannot take the credit for child and dependent care expenses in most cases.
  4. You cannot take the earned income credit.
  5. You cannot take the exclusion or credit for adoption expenses in most instances.
  6. You cannot take the credit for higher education expenses (American opportunity and lifetime learning credits), the deduction for student loan interest, or the tuition and fees deduction.
  7. You cannot exclude the interest from qualified savings bonds that you used for higher education expenses.
  8. If you lived with your spouse at any time during the tax year:
    1. You cannot claim the credit for the elderly or the disabled,
    2. You will have to include in income up to 85% of any social security or equivalent railroad retirement benefits you received, and
    3. You cannot roll over amounts from a traditional IRA into a Roth IRA.
  9. Your income limits that reduce the child tax credit and the retirement savings contributions credit are half of the limits for a joint return filer.
  10. Your capital loss deduction limit is $1,500 (instead of $3,000 on a joint return).
  11. Your basic standard deduction, if allowable, is half of that allowed a joint return filer. See Itemized deductions , earlier.
  12. Your first-time homebuyer credit is limited to $4,000 (instead of $8,000 if you filed a joint return). If the special rule for long-time residents of the same main home applies, the credit is limited to $3,250 (instead of $6,500 if you filed a joint return).

Joint return after separate returns. If either you or your spouse (or both of you) file a separate return, you generally can change to a joint return any time within 3 years from the due date (not including extensions) of the separate return or returns. This applies to a return either of you filed claiming married filing separately, single, or head of household filing status. Use Form 1040X to change your filing status.

Separate returns after joint return. After the due date of your return, you and your spouse cannot file separate returns if you previously filed a joint return.

Exception. A personal representative for a decedent can change from a joint return elected by the surviving spouse to a separate return for the decedent. The personal representative has 1 year from the due date (including extensions) of the joint return to make the change.

Head of Household

Filing as head of household has the following advantages.

  • You can claim the standard deduction even if your spouse files a separate return and itemizes deductions.
  • Your standard deduction is higher than is allowed if you claim a filing status of single or married filing separately.
  • Your tax rate usually will be lower than it is if you claim a filing status of single or married filing separately.
  • You may be able to claim certain credits (such as the dependent care credit and the earned income credit) you cannot claim if your filing status is married filing separately.
  • Income limits that reduce your child tax credit and retirement savings contributions credit are higher than the income limits if you claim a filing status of married filing separately.

Requirements. You may be able to file as head of household if you meet all the following requirements.

  • You are unmarried or “considered unmarried” on the last day of the year.
  • You paid more than half the cost of keeping up a home for the year.
  • A “qualifying person” lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the “qualifying person” is your dependent parent, he or she does not have to live with you. See Special rule for parent, later, under Qualifying person.

Considered unmarried. You are considered unmarried on the last day of the tax year if you meet all the following tests.

  • You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.
  • You paid more than half the cost of keeping up your home for the tax year.
  • 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.
  • Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Qualifying person , later, for rules applying to a child's birth, death, or temporary absence during the year.)
  • You must be able to claim an exemption for the child. However, you meet this test if you can’t claim the exemption only because the noncustodial parent can claim the child using the rule described later in Special rule for divorced or separated parents (or parents who live apart) under Exemptions for Dependents. The general rules for claiming an exemption for a dependent are shown in Table 3.

CAUTION: If you were considered married for part of the year and lived in a community property state (one of the states listed later under Community Property ), special rules may apply in determining your income and expenses. See Publication 555 for more information.

Nonresident alien spouse. If your spouse was a nonresident alien at any time during the tax year, and you haven’t chosen to treat your spouse as a resident alien, you are considered unmarried for head of household purposes. However, your spouse isn’t a qualifying person for head of household purposes. You must have another qualifying person and meet the other requirements to file as head of household.

Keeping up a home. You are keeping up a home only if you pay more than half the cost of its upkeep for the year. This includes rent, mortgage interest, real estate taxes, insurance on the home, repairs, utilities, and food eaten in the home. This doesn’t include the cost of clothing, education, medical treatment, vacations, life insurance, or transportation for any member of the household.

Qualifying person. Table 2 shows who can be a qualifying person. Any person not described in Table 2 is not a qualifying person.

Generally, the qualifying person must live with you for more than half of the year.

Table 2.Who Is a Qualifying Person Qualifying You To File as Head of Household?1

Caution. See the text of this publication for the other requirements you must meet to claim head of household filing status.
IF the person is your ...
AND ...
THEN that person is ...
qualifying child (such as a son, daughter, or grandchild who lived with you more than half the year and meets certain other tests) 2
he or she is single
a qualifying person, whether or not you can claim an exemption for the person.
he or she is married and you can claim an exemption for him or her
a qualifying person.
he or she is married and you cannot claim an exemption for him or her
not a qualifying person. 3
qualifying relative 4 who is your father or mother
you can claim an exemption for him or her
not a qualifying person. 5
you can’t claim an exemption for him or her
not a qualifying person
qualifying relative4 other than your father or mother (such as a grandparent, brother, or sister who meets certain tests)
he or she lived with you more than half the year, and he or she is related to you in one of the ways listed under Relatives who don't have to live with you in Pub. 501 and you can claim an exemption for him or her5
a qualifying person
he or she did not live with you more than half the year
not a qualifying person
he or she is not related to you in one of the ways listed under Relatives who don't have to live with you in Pub. 501 and is your qualifying relative only because he or she lived with you all year as a member of your household
not a qualifying person
you can’t claim an exemption for him or her  
1 A person can’t qualify more than one taxpayer to use the head of household filing status for the year.
2 See Table 3 for the tests that must be met to be a qualifying child. Note. If you are a noncustodial parent, the term “qualifying child” for head of household filing status doesn’t include a child who is your qualifying child for exemption purposes only because of the rules described under Children of Divorced or Separated Parents (or Parents Who Live Apart) under Exemptions for Dependents, later. If you are the custodial parent and those rules apply, the child is generally your qualifying child for head of household filing status even though the child isn’t a qualifying child for whom you can claim an exemption.
3 This person is a qualifying person if the only reason you can’t claim the exemption is that you can be claimed as a dependent on someone else's return.
4 See Table 3 for the tests that must be met to be a qualifying relative.
5 If you can claim an exemption for a person only because of a multiple support agreement, that person isn’t a qualifying person. See Multiple Support Agreement in Pub. 501.
6 See Special rule for parent .

Special rule for parent. If your qualifying person is your father or mother, you may be eligible to file as head of household even if your father or mother does not live with you. However, you must be able to claim an exemption for your father or mother. Also, you must pay more than half the cost of keeping up a home that was the main home for the entire year for your father or mother.

You are keeping up a main home for your father or mother if you pay more than half the cost of keeping your parent in a rest home or home for the elderly.

Death or birth. If the person for whom you kept up a home was born or died in 2016, you still may be able to file as head of household. If the person is your qualifying child, the child must have lived with you for more than half the part of the year he or she was alive. If the person is anyone else, see Pub. 501.

Temporary absences. You and your qualifying person are considered to live together even if one or both of you are temporarily absent from your home due to special circumstances such as illness, education, business, vacation, military service, or detention in a juvenile facility. It must be reasonable to assume that the absent person will return to the home after the temporary absence. You must continue to keep up the home during the absence.

Kidnapped child. You may be eligible to file as head of household even if the child who is your qualifying person has been kidnapped. You can claim head of household filing status if all the following statements are true.

  • The child is presumed by law enforcement authorities to have been kidnapped by someone who isn’t a member of your family or the child's family.
  • In the year of the kidnapping, the child lived with you for more than half the part of the year before the kidnapping.
  • You would have qualified for head of household filing status if the child hadn’t been kidnapped.

This treatment applies for all years until the earliest of:

  1. The year the child is returned,
  2. The year there is a determination that the child is dead, or
  3. The year the child would have reached age 18.

More information. For more information on filing as head of household, see Pub. 501.

 

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Publication 504: Divorced or Separated Individuals - Filing Status