Filing Status During Divorce

You may have questions regarding the rules regarding federal income tax filing status during the pendency of divorce or separation proceedings. In general, marital status for tax purposes depends upon your status under state law.

If, as of the end of the tax year, there has been issued a final decree of divorce or you are legally separated under a final decree of separate maintenance, then you are no longer married and therefore file as a single person. If you live with one or more children and pay more than half the cost of running the household, you may qualify for head of household filing status.

If, as of the end of the tax year, there has been no final decree of divorce, annulment or separate maintenance, then you are still considered as married even if you are separated from your spouse under a separation agreement or a non-final court decree. You therefore may file a joint return or as a married individual filing separately. However, a special rule permits you to be treated as unmarried for filing status if:

• you don't file a joint return for the year;
• you maintain as your home a household which, for more than half the year, is the principal residence of a child;
• you furnish more than half of the cost of maintaining that household; and
• during the last six months of the year, your spouse isn't a member of that household.

Be aware that, if you are treated as married under the above rules (that is, there has been no final court decree and you don't qualify under the special rule discussed above), you may want to file separately even if a joint return would result in lower overall tax. The reason is that, in general, where a joint return is filed, both spouses are jointly liable for all taxes, penalties and interest for the year. As a result, if you file a joint return and your spouse doesn't pay the full amount of tax due, you could be liable for tax on income you never received or even knew about.

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