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Confusing Filing Status

Woman is separated from her husband and they have lived apart for nearly 3 years. He lives in NY; she lives in VA. Since late 2008, they have a signed agreement under which he sends her maintenance payments of about $2,500 each month (about $30,000 a year). By the end of 2010, they were not legally divorced.

She has been filing as MFS, reporting all payments from him as alimony. The IRS recently audited him and assessed interest and penalties. Apparently he was over deducting the amount of payments made to her.

But, the IRS instructions concerning filing status seem to differ from the instructions with my tax software (TaxAct) about whether she can be considered single for tax purposes. Obviously, the ability to file as single would provide tax benefits.

From the IRS: ?Your filing status is single if, on the last day of

the year, you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree, and you do not qualify for another filing status.?

From TaxAct: ?You were legally separated according to your state law

under a decree of divorce or separate maintenance. But if, at the end of 2010, your divorce was not final (an interlocutory decree), you are considered married and cannot check the box on line 1 (single).?

Is MFS her correct filing status or is single an option?

Reply to
R. Pile
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Statutory marriage states require that the divorce be final.

Such may be different for the 15 common-law marriage states.

Reply to
D. Stussy

I'm not sure what you mean by "statutory marriage" but it appears you are referring to those states who do not recognize common law marriages originating in that specific state. That being the case, your interpretation of the definition of marriage for filing status is incorrect. Many of those "statutory" states have legal separation and issue a separate maintenance decree. Those individuals can file as single per tax law. E.g., the State of Nevada has fill in the blank legal separation forms that lead to a signed separate maintenance decree.

Reply to
Alan

The IRC says, "an individual who is legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married;..." I don't see how that has anything to do with state law unless state law allows an interrim decree of separation pending final divorce.

There is no such thing as common law divorce, so the rule with regard to divorce in those states should be exactly the same.

Reply to
Stuart A. Bronstein

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