Although the Internal Revenue Service has a reputation for being a stickler for rules, they don't always make issues clear-cut. Marital separation is one of those areas where multiple – and sometimes conflicting – rules apply. Your marital status for tax purposes may depend on several factors in addition to whether a court order separates you and your spouse.
If you're legally separated, this typically means that a family court has issued a decree or judgment declaring that you and your spouse are living apart. The decree resolves all issues of custody, support, marital debts and sometimes even property division. A separation decree is much the same as a divorce decree, but spouses aren't free to remarry. The IRS treats legal separation the same as a divorce. If you have a court order separating you, you and your spouse usually cannot file a joint married return.
Not all states recognize legal separation and this can complicate the issue. Typically, you can enter into a separation agreement with your spouse in these states, resolving issues of support, property, debts, and custody. However, you haven't "legally" separated because their statutes don't recognize such an event. You've just entered into a legally binding contract to govern aspects of your marriage. Therefore, as far as the IRS is concerned, you and your spouse are still married – you just don't live together. You can file a joint married return.
To further confuse matters, some states offer a third option: limited divorces, sometimes called divorces from bed and board. These are similar to legal separations. A court-issued judgment or decree resolves all marital issues but it doesn't actually divorce spouses; they're not free to remarry. If you have a decree for a limited divorce or a divorce from bed and board, the IRS usually treats this the same as a separation decree. You can't file a joint married return – unless the order is interlocutory. This means it contains a provision that automatically converts it to a final divorce at a later time. Sometimes, one spouse must file a motion with the court, requesting the conversion. These orders are not open-ended like separation decrees. Therefore, the IRS allows you to file a joint married return if you choose to and provided your order hasn't yet been converted to a final and absolute divorce.
If you can no longer file a joint married return because you and your spouse have legally separated, your next challenge is to figure out exactly how you should file. If you're considered married because you're living separately and apart under the terms of a separation agreement, and if you don't want to file a joint married return, you must file separate married returns unless you meet the qualifications for head of household. If you're legally separated by a court order or by a non-interlocutory limited divorce decree, you must file using the single tax status unless you qualify as head of household. If you have an interlocutory decree, you can file either a joint or separate married return, but you can't file a single return. The head of household option is available to taxpayers who are unmarried or considered unmarried if they pay for more than half their household expenses during the year and if a dependent lives with them. Other rules apply as well, so if you think you might qualify, speak with a tax professional.
- IRS: Filing Status
- Ohio Legal Services: Family Law – Legal Separation, Divorce and Dissolution
- The Law Office of Steven J. Kaplan: There is No "Legal Separation" in New Jersey (PDF)
- Nolo: Interlocutory Decree
- DivorceNet.com: What Is a Divorce From Bed and Board?
- Jackson Hewitt Tax Service: Filing Status
Beverly Bird has been writing professionally for over 30 years. She is also a paralegal, specializing in areas of personal finance, bankruptcy and estate law. She writes as the tax expert for The Balance.