Married filing Separate

years, no contact, no kids. Can one ever file single?

No, not without a court-ordered decree of separation ("legally separated", which is almost the same thing as divorced). There is no such thing as common-law divorce. I suppose if a spouse was missing and presumed dead, you could probably get out of legally married status, but you'd have to ask a lawyer to be sure.

There are a few areas where MFS-but-living-apart-all-year avoids the worst of the MFS "penalties", such as taxable Social Security income thresholds.

If domiciled in a community property state, it sounds fairly certain that the marital community has ended, for purposes of splitting income, but not for filing status.

No, not without a court-ordered decree of separation ("legally separated", which is almost the same thing as divorced). There is no such thing as common-law divorce. I suppose if a spouse was missing and presumed dead, you could probably get out of legally married status, but you'd have to ask a lawyer to be sure.

There are a few areas where MFS-but-living-apart-all-year avoids the worst of the MFS "penalties", such as taxable Social Security income thresholds.

If domiciled in a community property state, it sounds fairly certain that the marital community has ended, for purposes of splitting income, but not for filing status. ============= Don't forget that if you're supporting your parent (whether or not the parent lives with you), you might be eligible for head-of-household rates instead.

That's not how I read Pub 501. You can file HoH only if you are "considered unmarried" for the year in question. While housing a dependent child can (with other conditions) get you to "considered unmarried" status, a dependent parent can't no matter where the parent lives.

Phil Marti VITA/TCE Volunteer Clarksburg, MD

unmarried" for the year in question. While housing a dependent child can (with other conditions) get you to "considered unmarried" status, a dependent parent can't no matter where the parent lives.

I agree with Phil. Sec. 7703(b) (the section pointed to from Sec. 2) is quite clear that the qualifying person must be your child who lives with you.

I agree with Phil. Sec. 7703(b) (the section pointed to from Sec. 2) is quite clear that the qualifying person must be your child who lives with you.

============Note that 7703(a)(2) [duplicated at 2(b)(2)(B)] only requires legal separation under a decree of separate maintenance (i.e. not a completed divorce, and in some states, separate maintenance is NOT equivalent to divorce). There is no dependent child required to be in the household under this provision, so maintenance of a parent's household under section

2(b)(1)(B) can qualify the taxpayer for HoH status.

Note also that one can be married under the definition in 7703, but NOT married under 2(b)(2)(C) - i.e. a U.S. citizen taxpayer married to a non-resident alien.

I stand by my answer. I don't care what a publication says when the IRC directs otherwise. I shall grant you that supporting the parent's household doesn't get one to "unmarried" status. However, it still gets certain unmarried taxpayers to HoH status without a dependent child.

No quarrel with that statement.

But the whole thread has been in the context of married taxpayers (not divorced or legally separated) with no kids, where one refuses to file jointly. The only thing you pointed out that answers the OP's question is that he might be married to a non-resident alien who he does not elect to treat as a resident alien, and he might also have a parent who meets the HOH qualifying individual requirements, and in the case that both of those things are true, yes there is an exception to filing MFS.

In your initial comment, you omitted the part about being married to a non-resident alien and not electing to treat spouse as a resident alien. So that comment, as it stood by itself, was not a valid answer to the OP's question -- simply paying over half the household costs of a dependent parent could not get him out of MFS status as you suggested it might. Only adding in the uncommon non-resident alien spouse factor might do so.

No quarrel with that statement.

But the whole thread has been in the context of married taxpayers (not divorced or legally separated) with no kids, where one refuses to file jointly. The only thing you pointed out that answers the OP's question is that he might be married to a non-resident alien who he does not elect to treat as a resident alien, and he might also have a parent who meets the HOH qualifying individual requirements, and in the case that both of those things are true, yes there is an exception to filing MFS.

In your initial comment, you omitted the part about being married to a non-resident alien and not electing to treat spouse as a resident alien. So that comment, as it stood by itself, was not a valid answer to the OP's question -- simply paying over half the household costs of a dependent parent could not get him out of MFS status as you suggested it might. Only adding in the uncommon non-resident alien spouse factor might do so. ============= He asked if there was ANY exception. I gave him one. Explanations are extra. ;-)

My posting told him where to look -- not that he qualified for such treatment.

I totally disgaree with you. 7703(a) is irrelevant. Sec. 2(c) provides the excepti (b) Certain married individuals living apart For purposes of those provisions of this title which refer to this subsection, if? (1) an individual who is married (within the meaning of subsection (a)) and who files a separate return maintains as his home a household which constitutes for more than one-half of the taxable year the principal place of abode of a child (within the meaning of section 152 (f)(1)) with respect to whom such individual is entitled to a deduction for the taxable year under section 151 (or would be so entitled but for section

152 (e)), (2) such individual furnishes over one-half of the cost of maintaining such household during the taxable year, and (3) during the last 6 months of the taxable year, such individual?s spouse is not a member of such household, such individual shall not be considered as married.

The above is probably one of the clearest set of rules I have seen. It very explicitly states that the quaifying person has to be your child as defined in sec. 152(f)(1). This section narrows the definition to someone who is your child, stepchild, eligible foster child or adopted child.

1564."

Alan's description of what it takes for a married person to qualify for head of household filing status is accurate and complete. There is no other way for a married taxpayer to qualify for HOH filing status.

Disagree, as previously described in this thread.

While the more common "married but considered unmarried for tax purposes" rule requires the HOH qualifying person to be a child, there is no such restriction that I can find for the qualifying person of the taxpayer who is considered unmarried for HOH purposes due to having a non-resident alien spouse.

§ 2(b) Definition of head of household [...] § 2(b)(2) Determination of status [...] § 2(b)(2)(B) a taxpayer shall be considered as not married at the close of his taxable year if at any time during the taxable year his spouse is a nonresident alien;

The Tax Book also confirms this:

"Nonresident alien spouse. A taxpayer is considered unmarried for HOH purposes if his or her spouse was a nonresident alien at any time during the year and the taxpayer does not elect to treat the nonresident spouse as a resident alien. However, the spouse is not a qualifying person for HOH purposes. The taxpayer must have another qualifying person and meet the other tests to be eligible to file as Head of Household."

Note that "another qualifying person" in the above paragraph is not limited to a child, but could also be a parent.

When Stussy says "Note [...] 7703(a)(2) [duplicated at 2(b)(2)(B)]" it seems there is either a typo, or some of us are reading a different version of the code. § 7703(a)(2) is duplicated at § 2(b)(2)(A), according to my version, not at 2(b)(2)(B).

When Alan says " Sec. 2(c) provides *the* [emphasis added] exception for filing as HoH even though you are married. ", he is wrong, as it simply provides *one* exception, but not the only one. § 2(b)(2)(A) and §

2(b)(2)(B) also provide exceptions.

Let me be clearer:

My reply was to the situation of someone who is married and living apart from a spouse. It was not meant as the only exception to the general definition of HoH. It was not meant as a comment on those individuals who may be married to an NRA.

I certainly agree that if one is married to an NRA, then one can file as HoH as long as they meet the general definition. This definition would include having a "qualifying child" or one's parent as the qualifying person.

But... for two citizens and/or RAs who are married under federal law and can only file either a joint return or as married separate, the only exception is if they meet the requirement of living apart and the qualifying person is either a child, stepchild, adopted child or eligible foster child. All other persons (any other "qualifying child" such as a sibling or lineal descendant, etc. or a parent) fail the test.

I agree. Some years ago I remember hearing a legend about how living apart for six months would qualify a couple as unmarried for this purpose, even if they were still married. There's no support for that in the code as far as I can tell.

Well, they can be treated as unmarried for certain purposes.

For example, if you have a couple with no dependents who are legally-married and file MFS, if they live apart for the last six months of the year they get to use the single filer rules when computing the amount of taxable social security benefits instead of using the MFS rules (which are much less favorable).

I fear this thread is just becoming more confusing and possibly inaccurate. :-(

As for Stu's comment above, it *is* in fact living apart for the last six months of the year that is a required condition for filing as HOH under the "married but considered unmarried" rule for married parents with qualifying child(ren). This fact has been previously discussed in this thread.

As for Rich's comment, I'm 99% sure without looking it up that the taxable Soc. Security rule requires living apart the entire year, not just the last six months.

You're right, Mark. My bad.