Maryland "Limited Divorce"

I might disagree. MD has gone out of its way to not have legal separation. Therefore, we must determine if the MD Limited Divorce meets the federal definition for tax filing. After reading the MD statutes and reviewing various MD divorce attorney tax sites (the lawyers don't agree on this issue) I have concluded that the Limited Divorce would meet the definition if it is an order for an indefinite period of time. The statute (Sec. 7-102) allows for the order to be issued for a definite period or an indefinite period. I would disagree with you if the Limited Divorce was issued for a definite period as that would make it nothing more than a temporary order.

I recommend that this be discussed with a MD tax attorney.

I might disagree. MD has gone out of its way to not have legal separation. Therefore, we must determine if the MD Limited Divorce meets the federal definition for tax filing. After reading the MD statutes and reviewing various MD divorce attorney tax sites (the lawyers don't agree on this issue) I have concluded that the Limited Divorce would meet the definition if it is an order for an indefinite period of time. The statute (Sec. 7-102) allows for the order to be issued for a definite period or an indefinite period. I would disagree with you if the Limited Divorce was issued for a definite period as that would make it nothing more than a temporary order.

I recommend that this be discussed with a MD tax attorney. ================ I too would disagree, but for a different point: If a "limited divorce" does not grant the right to remarry, one could say that you're still married, and thus, MFS or HoH (if qualified) are the only choices for filing status.

I have been unable to find a definition for "legally separated" in the tax law. In fact that phrase does not occur in the code - the phrase that does occur is "under a decree of divorce or separate maintenance..."

Likewise, I have been unable to find a definition for "separate maintenance" as it would be applied under the tax laws. In general separate maintenance just means that the couple is legally all but divorced, though they remain technically married.

Being technically married would imply that there is no right to remarry.

I have not checked into the MD statutes. However based on what I did find, as long as state law treates the couple as essentially no longer a couple (though still technically married) that should qualify as legally separated.

Alan had an excellent point when he talked about whether the separate is temporary or permenant. The phrase "divorce or separate maintenance" is used many times in the code. But I found one incidence when the code (section 1563) includes interlocutory decrees - and that has to do with when one spouse is considered owning stock in the name of the other spouse. And in that statute it does not apply to interlocutory decrees.

Since Congress did not use that language in other statutes, the implication is that interlocutory (i.e. temporary or not final) decrees do not qualify as divorce or legal separation.

For tax purposes only per section 7703, an individual is "considered" to be unmarried if legally separated under a decree of divorce or of separate maintenance. This individual could then file as single. Under state law where the legal separation was issued, the individual is still legally married and if they remarry are commiting bigamy.

This considered to be unmarried phrase also pops up in the definition of head of household.

I don't have access to my library right now but there are numerous tax court and circuit court decisions on this issue that go all the way back to the old section 143 of Title 26. In fact, the regulations of the old section 143 are still valid. They make it clear that the right to remarry is not the issue. The issue is whether a state court has granted a legal separation that is not for a temporary period of time.

When Congress granted the right for married individuals to file as single it was because they recognized that for either religious or moral reasons a couple would not divorce but would live as if they were not married. Since incorporation of this rule, other reasons have popped up as to why a couple may decide to live as single but stay married. E.g., various employee benefits available to a spouse.

Found one case... see Boyer vs Comm'r, where DC circuit reversed tax court. Also note that Boyer continues to be cited.

Reference is to the old section 153... I had said 143.

For tax purposes only per section 7703, an individual is "considered" to be unmarried if legally separated under a decree of divorce or of separate maintenance. This individual could then file as single. Under state law where the legal separation was issued, the individual is still legally married and if they remarry are commiting bigamy.

This considered to be unmarried phrase also pops up in the definition of head of household.

I don't have access to my library right now but there are numerous tax court and circuit court decisions on this issue that go all the way back to the old section 143 of Title 26. In fact, the regulations of the old section 143 are still valid. They make it clear that the right to remarry is not the issue. The issue is whether a state court has granted a legal separation that is not for a temporary period of time.

When Congress granted the right for married individuals to file as single it was because they recognized that for either religious or moral reasons a couple would not divorce but would live as if they were not married. Since incorporation of this rule, other reasons have popped up as to why a couple may decide to live as single but stay married. E.g., various employee benefits available to a spouse. =================Noted.

"Separate maintenance" means the payment of alimony but does not address (or change) current marital status at all. Marriage is an issue determined by the states, not the federal government, especially since DOMA was ruled unconstitutional. The text in the question says that "limited divorce" MAY consider spousal support. I say that if it does NOT, it fails this part.

"Limited divorce" without the right to remarry is not a divorce in my eyes because it does not dissolve the marriage. (If the marriage were dissolved, one would have the right to remarry.)

Therefore, the status is immaterial. What is material is what is granted under the status.

A decree of separate maintenance can establish that no alimony shall be paid.

Right. What is important is not whether money is paid, but what the legal rights and obligations of the couple are. Do they have rights to inherit, to visit the other person in the hospital, to acquire marital property etc.? If not (even if they don't have the right to remarry, and even if no alimony or other spousal support is paid), and the court order determining the status is final, then they should be treated as unmarried.

A decree of separate maintenance can establish that no alimony shall be paid. =============And you chose to add that because? Where did I exclude the case of zero alimony?

You are, of course, correct. And thank you for your prompt payment of zero dollars today.