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Ask Merlo Your Own Question
Merlo, Accountant
Category: Tax
Satisfied Customers: 9783
Experience:  25+ years tax consulting. Specializing in returns for US citizens living abroad
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My understanding is that if two people are living apart and

Customer Question

My understanding is that if two people are living apart and have in place a separate maintenance agreement, in my case drawn up by my lawyer and signed by my wife and myself also notarized,that this document serves as a legal document. The tax law says that we can file as single, not married single, but single ,is this correct and if so do I attach a copy to my tax forms when I file? I have asked several lawyers and in each case received somewhat ambiguous answers. Maryland
Submitted: 8 years ago.
Category: Tax
Expert:  Merlo replied 8 years ago.



If you are unmarried, or if you are legally separated from your spouse under a divorce or separate maintenance decree according to your state law, and you do not qualify for another filing status, your filing status is single - not "married filing separate return". You do not have to attach a copy of that decree to your tax return.


I am giving you a link to a section of the IRS website which explains this in more detail. This same information is also detailed on page 12 of the instructions for Form 1040.


If this has been helpful please press the Accept button. Positive feedback is also appreciated.


Thank you.


Customer: replied 8 years ago.
I have this onfo, it' one thing to get a limited divorce, a separate maint agreement quite another,especially if drawn up by a lawyer
Expert:  Merlo replied 8 years ago.

Hello againCustomer


I apologize if I misinterpreted your original question. You are quite right that if you do not actually have a separate maintenance decree issued by the court, that it is not the same as simply having a separate maintenance agreement drawn up by an attorney.


In your situation, you would not qualify to file as a "single" taxpayer. However, you may qualify to file as "head of household" if you meet certain criteria. The filing status of head of household actually offers a bigger tax advantage than filing as single.


This can apply to you even if you are not divorced or legally separated. If you qualify to file as head of household, instead of as married filing separately, your tax may be lower, you may be able to claim the earned income credit and certain other credits, and your standard deduction will be higher. The head of household filing status allows you to choose the standard deduction even if your spouse chooses to itemize deductions.


Here are the criteria you must meet to file as head of household:

  1. You file a separate return.

  2. You paid more than half the cost of keeping up your home for the tax year.

  3. Your spouse did not 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.

  4. Your home was the main home of your child, stepchild, or foster child for more than half the year.

  5. You must be able to claim an exemption for the child. However, you meet this test if you cannot claim the exemption only because the noncustodial parent can claim the child.

If you meet all of the above criteria, then you can file as head of household, even though you are not "legally" separated by a decree from the court.


I am giving you two links below. One is to IRS Publication 501 which explains the rules for filing status. Refer in particular to the section for "Married Filing Separately" and then also to the section for "Head of Household - subsection "Considered Unmarried".


The other link is to the actual IRC Code 7703 which is the actual law which governs this choice in filing status.


I hope this helps clarify things for you, but if not let me know.