I have a client who has not lived with his spouse for the last 18 months and is currently under a court order to pay family support until he goes to trial.

There is (for the sake of argument) no possibility of filing jointly since the two refuse to talk to one another.

Can my client file separate if he is still married at the end of the year?

According to California law, his income is separate the day he moved out of the house.

He COULD file married but I would prefer he files single as the rates are better.

A colleague of mine believes he can file separate if he has obtained a "separate maintenance" by the end of the year.

Would the family support order qualify as "separate maintenance"?

asked 12 Oct '09, 02:14

TaxQueries's gravatar image

TaxQueries ♦♦
accept rate: 2%

edited 25 Aug '10, 03:47

stephenweinstein's gravatar image


see IRC code sec 71; could also be income to the spouse if payments are made for separate maintenance, aka alimony. Just money paid to support children is not, but you do not mention children or other dependents. could be income to the spouse for the entitlement of the income. Read court order

(26 Oct '09, 19:43) SandySea

With all due respect for the other posters, I think this may help. The taxpayer has three filing statuses to chose from, depending upon his particular facts(assuming married filing joint is not a viable option).

Married filing separate is the first obvious choice. He may choose this no matter how long they have been separated, but there are problems. If one of the MFS spouses files Sch A, they both must itemize. Many other tax breaks are lost for MFS including EIC.

The taxpayer may file SINGLE if the Taxpayer was legally separated, according to state law, under a decree of divorce OR separate maintenance. This is dependent upon local state law.

A married individual can be considered unmarried for HOH purposes if all of the following apply: 1. The taxpayer lived apart from his or her spouse for the last six months of the year. Temporary absences for special circumstances, such as for business, medical care, school, or military service, count as time lived in the home. 2. The taxpayer does not file a joint return with his or her spouse. 3. The taxpayer paid over half the cost of keeping up the home during the year. 4. The taxpayer's home was the main home of the taxpayer's child, step-child or foster child for more than half the year. (NO other dependents count). 5. The taxpayer claims the child as a dependent of the child's other parent claims him or her as a dependent under the rules for children of of divorced or separated parents.


answered 08 Nov '09, 00:50

AJ's gravatar image

accept rate: 5%

Yeppers like above, I DID KNOW THIS....stupid until I read it :)

(08 Nov '09, 13:34) SandySea

Any married person can file as "married filing separately". The only question that depends on the circumstances is whether or not he also has the option to file some other way (such as head of household) or he must file as "married filing separately". He definitely can file as "married filing separately" if he wants.


answered 29 Oct '09, 01:21

Stephen%20Weinstein's gravatar image

Stephen Wein...
accept rate: 20%

He cannot file single unless he is legally separated. If he had a qualifying dependent that lived with him all year he can file Head of Household. Any couple can file married joint or married separate. Many couples do even when they live together. Married separate is the highest tax bracket and disallows many deductions. Child support is not deductible but alimony is.


answered 25 Oct '09, 20:33

Cathi's gravatar image

accept rate: 0%

Not true; Please review the 1040 instructions, Page 15, "Married persons who lived apart". In short, legally separated is not a condition if taxpayer lived apart from spouse for the last six months of the year, and taxpayer paid for more than half the cost of keeping up the home. The other two conditions relate to claiming dependents

(25 Oct '09, 21:23) Brent Berkman

Brent is correct. And a qualifying dependent does NOT have to live with him the entire year but at least 1/2 the year.

(26 Oct '09, 12:48) SandySea

Cathi is correct.

(05 Jun '10, 17:24) Tom

But the key is you can never file single if you are married and any person can file married filing separate if they don't want to or can't file joint.


answered 01 Nov '09, 21:52

Toni%20McIntyre%20CPA's gravatar image

Toni McIntyr...
accept rate: 5%

But, what about if a couple lived apart for the last six months of the year and the taxpayer paid for more than half the cost of upkeep for the home and had a child living there? (Sec 7703(b))

(01 Nov '09, 22:07) Brent Berkman

You still can't file as single in that case. You would be head of household (assuming you meet all the other tests).

(05 Jun '10, 17:21) Tom

I went back and read page 15. That is for HOH not single. Go back and read page 14 under single and it says legally separated.


answered 27 Oct '09, 15:25

Cathi's gravatar image

accept rate: 0%


Still can file single if tp lived apart from spouse for the last 6 months of the year and appears that due to court order this is indeed a separate maintenance. State laws abide, but Cathi you are correct that you need a court order stating is legally (court) separated.

(27 Oct '09, 16:09) SandySea

Cathi is correct.

(05 Jun '10, 17:24) Tom

Provided the two spouses lived apart for the last six months of the year, single filing is allowed. See this under filing status in the 1040 instructions.

Also, if the taxpayer has a dependent, they qualify as head of household.


answered 15 Oct '09, 04:32

Brent%20Berkman's gravatar image

Brent Berkman
accept rate: 13%

Not true. You can be considered unmarried as a prerequisite for filing as head of household, but you CAN NOT file single unless you are actually divorced from your spouse (or under a separate maintenance decree).

(05 Jun '10, 17:24) Tom
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Asked: 12 Oct '09, 02:14

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Last updated: 25 Aug '10, 03:47