Separation definition & tax filing status

[ysabeau]

What is the name of your state (only U.S. law)?
Kansas

On October 30, 2009, I filed a divorce petition with the court. Since the first date available after the mandatory 60-day waiting period was January 19, 2010, our divorce was not finalized by December 31st of the 2009 tax year. Now, as I'm getting ready to prepare taxes, this becomes an issue. Since I've been paying tuition this past year, if I file as Married Filing Separately I can't take any tax credits for that tuition. However, in my research of the matter, I have found this statement in the IRS document addressing the matter:

"Married persons. You are married for the whole year if you are separated but you have not obtained a final decree of divorce or separate maintenance by the last day of your tax year. An interlocutory decree is not a final decree. "

While I understand the filing was an interlocutory decree, because the documents filed contained an attached financial agreement that included amongst other statements:

"All food, toiletries, gas, etc. will be purchased separately after the date of filing for divorce"

and

"Husband may remain in the home during the 60-day waiting period with all household debt (mortgage, utilities, credit cards) paid by Wife with Husband held accountable for no marital obligations at this time."

Is that considered for tax filing purposes a "maintenance aggreement" (filed in writing to a court on October 30, 2009) thus making it possible for me to file Single and claim my tuition credits?

BTW The 60-day waiting period was up as of Dec. 29, and Husband was completely moved out of the home by Dec. 1st.

Any advice you can give on this matter would be greatly appreciated.

 

[mistoffolees]

"Married persons. You are married for the whole year if you are separated but you have not obtained a final decree of divorce or separate maintenance by the last day of your tax year. An interlocutory decree is not a final decree. "

Unlike many things, the IRS rules on this are pretty clear. You don't have a final decree so you're still married.

Under some circumstances, you might have qualified for head of household status even though your divorce was not finalized, but one of the requirements is that your spouse could not have lived in the house for the last 6 months - so you don't meet the requirement.
http://www.irs.gov/pub/irs-pdf/p501.pdf

Looks like Married filing separate or married filing jointly is your only option. If you and your stbx get along well, MFJ is likely to save you money. I would suggest an agreement that you each calculate your taxes separately and add up the total tax. Then, calculate your taxes filing jointly and determine the tax. Determine the difference and split it.

Alternatively, it may be more fair (if one spouse has a high income and the other has little) if you do the above, but rather than splitting the money equally, you proportion it based on income or on taxes due or some other factor.

Or, just file the taxes as married, filing separately and lose the tuition deduction.

 

[ysabeau]

So, neither of these statements

"All food, toiletries, gas, etc. will be purchased separately after the date of filing for divorce"

and

"Husband may remain in the home during the 60-day waiting period with all household debt (mortgage, utilities, credit cards) paid by Wife with Husband held accountable for no marital obligations at this time."

in the documents filed can be considered as

or separate maintenance

as defined by the IRS?

 

[mistoffolees]

So, neither of these statements



in the documents filed can be considered as as defined by the IRS?

What part of "Married persons. You are married for the whole year if you are separated but you have not obtained a final decree of divorce or separate maintenance by the last day of your tax year. An interlocutory decree is not a final decree. " don't you understand?

Your agreement is not final. Do you have a finalized, court approved separate maintenance agreement? No. You have a temporary interlocutory agreement - which is specifically excluded.

You were married at the end of the year. Period.