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Robin D.
Robin D., Senior Tax Advisor 4
Category: Tax
Satisfied Customers: 13330
Experience:  15years with H & R Block. Divisional leader, Instructor
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Please. I am wondering if you can help me clarify the rules

Customer Question

please. I am wondering if you can help me clarify the rules for being married yet filing separately. I just need to know if I qualify to do this.
JA: The Accountant will know how to help. Please tell me more, so we can help you best.
Customer: I have looked on the IRS website and I think I qualify, but would like to be more specific than their interactive software permits.
JA: Is there anything else important you think the Accountant should know?
Customer: I am in the process of getting a divorce, and I am receiving money from my spouse (who lives in a different state), but it is not based on a court order, just an agreement between us. He wants to file jointly, I do not.
Submitted: 1 month ago.
Category: Tax
Expert:  Robin D. replied 1 month ago.

Hello, I'm Robin. Welcome to JustAnswer. I'm reviewing your question now and typing up my reply. I'll post that in just a few moments.

Expert:  Robin D. replied 1 month ago.

Every taxpayer has the choice whether they will file with their spouse or separate. Your spouse cannot force you to file a joint return.

Tax says:

IRC § 2. An individual may be eligible to file a return as an unmarried individual, head of household, married individual filing a joint return, or as a married individual filing a separate return.

Married Filing Separate is the default filing status for those who are married, not legally separated or not considered married but do not wish to elect married filing jointly.

Generally, this is considered to be the least advantageous to the taxpayer. However, there are other personal or business reasons for a husband and wife to elect married filing separately.

You would file Married Filing Separate or Head of Household (if you have a qualifying person).

It is your choice not to file joint.

Please let me know if you need clarification. If you do not then a positive 5 star rating is appreciated so I get credit for the response. (look for the STARS or SMILEY FACES)

Customer: replied 1 month ago.
Thank you for this information. Yes, I would like a little more clarification. Here is my situation: I am in the process of divorcing my husband. We separated (not legally) in November, 2015. My husband lives and works full time in California, and has lived there since late 2013. I live and work in Maryland, and have done some since 2011. We have a child, who lives full-time with me in the family home in Maryland. I filed for divorce in June, 2016. My husband currently pays for the mortgage, taxes and all upkeep (e.g. utilities) of the family house in MD, although he does not live there. He also gives us a set amount of money each month (not considered alimoney or child support) for household expenses, and he pays for some activities for our daughter. He insists on filing jointly for taxes in 2016. I would prefer to file separately for 2016. There is a significant discrepancy in our incomes, as he earns about three times what I do. I am trying to figure out why he is so vehement about filing jointly - and I suspect it has something to do with the higher amount we would both have to pay to file separately, and it would hit him harder than it would me. Unfortunately he is a tax attorney and I don't know the rules about this. I appreciate your answer that he cannot force me to file jointly, but I also am trying to figure out what, given our unique situation, is the real financial issue here. The only thing I can come up with has to do with the family house -- that he is expecting to use the it as an area for substantial tax deductions which might be impacted if we file separately... but I am only guessing. This is why I am reaching out for more information from you now. He lives in an apartment in California, and has since March 2015.
Customer: replied 1 month ago.
I work full time as a professor at a small college, and my salary support food, clothing, transportation, medical expenses, and daily incidentals for both myself and my daughter. Under these circumstances, I am not sure who can claim our daughter as a dependent. As I mentioned, I do not pay for the house or associated utilities, and my husband does pay a set amount every month for household expenses. We agreed to this arrangement privately. We have a court date in late November to formalize it, and we are trying to negotiate a temporary settlement. Part of what he wants is a guarantee that we will file jointly - and he is against anything to the contrary. For him to be this firm about filing separately, I think there must be some financial risk to him if we do file separately, but I don't know what that risk is. Thank you for trying to help me understand the rules about married filing separately, and what happens to deductions regarding property and children under circumstances like ours.
Expert:  Robin D. replied 1 month ago.

If you file separately you are only responsible for your own tax and not his.

Maryland is not a community property state for tax so you are not required to report his income at all on your return.

If the child lived with you for more than half the year, you can claim that child as a dependent.

You can split the interest and taxes for the house or one of you can claim it. If one of you itemizes you both have to itemize if you file separate but with the child you can claim Head of Household and not be held to that.

He most likely wants to claim the child and MFS status is the worst for tax rates.

Expert:  Robin D. replied 1 month ago.

I am sorry for the delay in responding but I was just now shown you had posted.