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Separate Newlyweds

2009-12-08 by Eva Rosenberg

Today TaxMama hears from Ingrid in Illinois, who tells us. “We are over 40 and got married in December 2008. We have two homes, separate bank accounts, and maintain our own households. Can we each file Head-of-Household for 2009?”

Dear Ingrid,

Congratulations!

How interesting to get married and live totally separately. It’s certainly the best way not to hear each other snoring. And probably generates many fewer arguments.

But can you each file head of household?

Heck no!

You’re married.

You can each file as married, filing separate – which is THE most expensive filing status there is. You’re probably better off filing as married, filing jointly. (How did you file last year? After all, getting married in December, even if it’s December 31st, makes you married for the whole year in IRS’s eyes.)

Incidentally, head of household only works when you’re single and have dependents. Then you are the head of THEIR household. You can’t be the head of your own household. Good try, though.

Have a wonderful marriage!

And remember, you can find answers to all kinds of questions about marriage and other tax issues, free. Where? Where else? At TaxMama.com.

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# | Posted in Tax Quips | Comments » (14)

All Comments

Alan Jones, EA Says:
December 08th, 2009 at 06:48 am

There is a situation where both could qualify as head of household. They would have to be considered as not married for tax purposes, which means they did not spend one night together in the last six months of the year and each would have to have a qualifying dependent. The requirements for qualifying dependent are more strict in this case than normal.
So if they spent time together or do not have qualifying children of their own that they each support, then they can not qualify as HOH and must file MFS or MFJ.

Anne Miller Says:
December 08th, 2009 at 06:50 am

Interesting. What if they each had kids of their own and lived separately all year?

Eva Rosenberg, Your TaxMama® Says:
December 08th, 2009 at 08:18 am

Hi Anne,

Even if they have children, they are MARRIED. Please re-read my note above.

The only instance where they can use the HOH status and be married is the one Alan Jones, EA describes, above. That was designed for folks who are either in the process of divorce, or are essentially permanently separated. Some people can't get a divorce due to religion or abandonment, or some other reason. So, they are single in all by law.

But remember, Ingrid just got married. They are bound to spend some nights together…unless, of course, they only indulge in afternoon delights?

Hugs
Eva

Julie Dailey Says:
December 08th, 2009 at 08:23 am

I thought the rule was that they can't have LIVED together at any time during the last 6 months of the year plus have a qualified dependent.

Lucie Sample Says:
December 08th, 2009 at 08:34 am

Julie is right. They can't have LIVED together at any time between July 1 and December 31. If they each support their own household, have a qualifying dependent, and lived apart, then they can both file as head of household, married or not.

Eva Rosenberg, Your TaxMama® Says:
December 08th, 2009 at 08:41 am

Hi Lucie and Julie,

So…if they spent any nights together, does that mean they lived together for those days/nights?

Lucie, can you define 'live together"?

http://www.irs.gov/publications/p17/ch02.html#en_US_publink100032144

Thanks

Eva

Blakely Sanford Says:
December 08th, 2009 at 09:11 am

That strict definition would make Willie Nelson have to retitle his song, "To all the girls I've lived with before?

David Friedson Says:
December 08th, 2009 at 11:03 am

In fact there is a situation where a married individual can file as head of household: if married, (with qualifying dependent,) to a nonresident alien they are considered unmarried at the end of the year. See IRC 2 (b)(1)(A)(i)

Alan Jones, EA Says:
December 08th, 2009 at 11:05 am

That strict definition is ABSOLUTELY the way the IRS defines it for married persons. If you spent one night together during the last six months you are not considered unmarried for tax purposes. The above example is just one of the reasons the rules are the way they are.

Melissa Says:
December 08th, 2009 at 11:25 am

Hmm… While they maintain seperate bank accounts and homes and seperate households if one is giving monies to the other to help maintain the household of the other person in any way then that person is not paying to maintain their own house,better have some proof on hand.
I am curious what Illinois Head of Household criteria is, going to look that up.

Glenda Whitson EA Says:
December 08th, 2009 at 11:56 am

Wow, will wonders ever cease? I have clients this time of year who want to know if they can claim their girlfriends children as HOH but, they don't want to get married. They just want the EITC.

This one is a new one on me! It gave me a really good laugh! Our clients are so creative. LOL

Mary Fran, EA Says:
December 08th, 2009 at 12:23 pm

Hi!
Did anybody recently see a ruling on a divorced couple sharing a house because they couldn't afford to move? The IRS lost the case. I saw it on CCH daily email and wish I had saved it. (Could'a been CA, but pretty sure it was irs.) Within the last couple of months.

Eva Rosenberg, Your TaxMama® Says:
December 09th, 2009 at 07:43 am

Hi Mary Fran,

I don't think this is exactly what you're looking for, but…

http://tafkac.org/legal/yearly_divorce.html
Boyter, H. David v. Com., (1981, CA4) 49 AFTR 2d 82-451, 668 F2d 1382, 82-1 USTC 9117, remg (1980) 74 TC 989.

In a private letter ruling IRS gave its approval to a couple getting a divorce who intend to stay divorced and not remarry even though they "will be living together much of the time after the divorce." In this situation, IRS said that it will recognize the divorce if the divorce is not declared invalid by a court of competent jurisdiction and there are no factors present to indicate that the couple should not be considered as unmarried individuals." IRS Letter Ruling 7835076.

IRS applied this rule to a couple that wanted to file a joint return after they obtained a divorce and continued to live together. The Tax Court agreed that they could not file a joint return. Although they were divorced in '76, the couple continued to live together in that year as before. They did not tell many, if any, of their friends and neighbors of the divorce and most people thought they were still husband and wife. They had been similarly divorced and continued to live together in '55, but remarried in '67. They wanted to file a joint return for '76 but IRS balked on the ground that even though the state law (Texas) recognized common law marriages, they failed to meet one of the state law requirements—a mutual agreement to live together as husband and wife. The Tax Court agreed. The husband testified that after driving his wife to the courthouse to get the decree, there was no agreement to live as husband and wife. "No, we just went back home and did." In later years, Social Security treated them as husband and wife. But the Court held that this was not relevant, since the situation could have changed by that time.

Lucie Sample Says:
December 10th, 2009 at 07:57 am

No, TaxMama, I can't define "living together" because frankly, I have no idea what it means literally.

However, I would tend to agree that if they spent one night together they'd have a hard time proving they didn't "live together."

On the other hand, I would have to disagree with Melissa. The other spouse can contribute some support to the household, but it can't be more than half.