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Have a friend that is going through a divorce and has moved…

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Have a friend that is...
Have a friend that is going through a divorce and has moved from North Carolina to Florida in the last year. She has not lived with her husband for 3 years since 2015. An attorney is handeling the divorce but it is still in process. The tax preparer in North Carolina said they could file as single and said it would be okay to file single since their attorney has an agreement for thier separation. So the north carolina tax preparer filed the 2016 tax return as single for both parties. In Florida the tax preparer who she is filing her 2017 tax return is saying they need to file married filing separate since they are still married and have not lived together. Which tax preparer is correct the NC or the Florida? thanks for your response.
Submitted: 3 months ago.Category: Tax
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Answered in 13 minutes by:
4/3/2018
Tax Professional: Lev, Tax Advisor replied 3 months ago
Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 33,115
Experience: Taxes, Immigration, Labor Relations
Verified

The martial status is determined as on the last day of the tax year.

See page 6

https://www.irs.gov/pub/irs-pdf/p501.pdf

You are considered unmarried for the whole year if, on the last day of your tax year, you are either:
--Unmarried, or
--Legally separated from your spouse under a divorce or separate maintenance decree.
State law governs whether you are married or legally separated under a divorce or separate maintenance decree
.

.

In Florida, however, state law does not recognize legal separation..

.

See here - for North Carolina

https://www.montylaw.com/news-and-articles/2015/april/divorce-vs-legal-separation-in-nc-which-is-bette/

In order to obtain a divorce in North Carolina, the parties must be separated for a period of at least one year prior to applying to the court for a divorce. A married couple in North Carolina is considered “legally separated” by the court at the time at which the parties move into separate residences with at least one spouse having the intention to remain separated indefinitely.

.

So both are correct - but based their positions on different state laws.

We need to base position on North Carolina law in such situation.

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Customer reply replied 3 months ago
Are you saying the North Carolina law over rides Florida state law in this situation?
Tax Professional: Lev, Tax Advisor replied 3 months ago

the North Carolina law does NOT override Florida state law...

That is not correct interpretation.

But because they were separated in North Carolina - the North Carolina law is applicable for such situation.

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Tax Professional: Lev, Tax Advisor replied 3 months ago

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