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Ed Johnson
Ed Johnson, Tax Preparer
Category: Tax
Satisfied Customers: 10760
Experience:  GPHR Cert; U.S. Treasury Tax Advocacy Panel appointee
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My new wife lives in Maryland and I live in New York. She has

Customer Question

My new wife lives in Maryland and I live in New York. She has a child and has been filing as "Head-of-Household." As we maintain separate residences, can she maintain this filing status?
Submitted: 8 years ago.
Category: Tax
Expert:  Ed Johnson replied 8 years ago.



If you are married you have only two filing statuses: married jointly or married filing separately.


However one of you can claim head of household only under the following conditions.


1. She is considered unmarried at the end of the year.

2. She paid half the cost of keeping up a home for the year.

3. Your child lived with her more than half the year.

4. Your spouse did not live with you for the past six months at the end of the year.


However, this may raise a flag with the IRS. Just know that, the IRS considers the absent spouse to be part of the household if that parent is temporarily away for things like: work, school, vacation, sickness,etc.


This will involve the issue of where you tax home is rather than where your primary residence.


Generally, the primary residence is where you return home to where your children and wife are; and there for the IRS will not likely allow this on audit.


BotXXXXX XXXXXne, if you are returning for regular visits to visit your wife and children, the IRS is going to treat the home maintained by your spouse as your primary home.

Customer: replied 8 years ago.
Thanks Ed, I just wanted to clarify one thing -- does it make a difference where my tax home is? My tax home is in New York City, whereas hers is in Maryland. My thinking is that we're financially equivalent to a divorced couple in that I'm maintaining my own residence in NYC while she maintains the residence in Maryland, and thus that it might be fair for her to still file as Head-of-Household.

Put another way, what is the IRS criteria for "living apart?" The tax court cases I've looked at seem to indicate that maintaining separate residences is the key criterion.

Thanks again,

Expert:  Ed Johnson replied 8 years ago.





A tax home is where you live and work and can be very different from where your primary home is. The primary home can be the same as your tax home, or it can be different.


But here is my question to you: You get a much better deal if you file jointly unless together you are extremely high earners.


you can use this tax calculator to see how you might make out with different scenarios.


The case law will only apply to the district it was held in. The IRS has made it known that it will only apply case law by district, AND then only if it matches your circumstances exactly.


Can you point me to one of those cases you read so I can comment on them.


Here is the exact workding on the subject found in law.


(1) Taxpayer filed a separate return
(2) Taxpayer paid more than half the cost of keeping up taxpayer's home for the tax year.
(3) Taxpayer's spouse did not live in taxpayer's home during the last 6 months of the tax year. Spouse is considered to live with taxpayer even if he is temporarily absent due to special circumstances.
(4) Taxpayer's home was the main home of her child, stepchild, or eligible foster child for more than half the year.
(5) Taxpayer must be able to claim an exemption for the child. Taxpayer may still meet this test if she cannot claim the exemption because the noncustodial parent is allowed to claim the exemption for the child


See page 26 publication 17, Temporary Absence: