married - living in different states

Since you were neither domiciled in OK nor had OK source income, you don't have an OK filing requirement on your own. Your wife may, and, if she does, OK may require the same filing status she used on Federal, which would draw you in. Check the OK instructions.

Same answer as for 2007.

Once you find out what the OK rules are you'll be in a better position to judge.

On Apr 20, 11:03 am, snipped-for-privacy@yahoo.com (tonervvc) wrote:

California law (Family Code Sec. 771) provides that current earnings are separate (not community) income when spouses are living separate and apart. The California courts have always interpreted this provision (and its predecessor, Civil Code Sec. 5118) to apply only when the parties have separated permanently, with no intention of resuming the marital relationship. For example, property acquired by a husband who shacked up with his girlfriend on his boat, but ate dinner with his wife and children almost every night, paid his wife's household bills, and had his wife do his laundry was held to be community property (In re the Marriage of Baragry, CA-2, 73 Cal. App.

3d 444; 140 Cal. Rptr. 779; 1977 Cal. App. LEXIS 1860, September 19, 1977). Under the circumstances you describe, it appears your California earnings are still community income. However, you may be wise to seek legal advice on this question.

As I understand it your wife was visiting with friends and relatives in OK in 2007, and her absence from California during that time may have been temporary. If so, she remained a California resident during her absence, and I presume that is the way you filed your 2007 joint return -- as full year California residents.

Since she now has her own home in Oklahoma, she will be an Oklahoma resident in 2008. Even if her domicile (her permanent home) remains in California, she will be a statutory resident of Oklahoma if she is present in the state for more than 7 months of the taxable year ( Okla. Stat. 68 §2353(4) ). As a result she will be subject to Oklahoma tax on her community 1/2 of your earnings (YOU are still domiciled in California; it doesn't matter whether she is), and also on any earnings she may have in Oklahoma. Whether her Oklahoma earnings are community income (hence half yours) depends on whether her domicile actually changes to Oklahoma -- i.e., has she moved there with the intention of remaining there permanently or indefinitely? Since you remain in California, and your joint intention is to resume the marital relationship at some point in the future, she may remain domiciled in California. If so, your community 1/2 of her earnings will be subject to California tax, since that income belongs to you, a California resident. (Note the general principle here: the division of earnings between spouses is determined by the laws of the state of domicile of each of them. If your wife is domiciled in Oklahoma (a common-law jurisdiction), or your separation is permanent, her earnings are her separate income. If she is domiciled in California, and your separation is not permanent, her earnings in Oklahoma are community income.)

Of course both halves of your California earnings are subject to California tax, because they are from a California source. Oklahoma will give your wife credit for the California tax she pays on her community 1/2 of your California earnings. Similarly, if her Oklahoma earnings are community income, California will give you credit for the tax you pay to Oklahoma on your community 1/2.

You and your wife should consult legal and tax advice for 2008, because your situation is fairly complicated and the results may differ depending on all of the facts and circumstances, and events later in the year, that are not evident here.

Katie in San Diego