Taxpayer asks:
Can you file single if you are married? Short info I am still in school only have 1 more year then I am done. My insurance ran out so my husband and I got married for the insurance. We were engaged and already had a date. Just had to bump it up to get covered. So how many laws could I possible be breaking?
Thank you for your time,
Taxgirl says:
Easy answer: no. Your filing status is determined as of the last day of the tax year. So if you’re married on December 31 under the laws of your state, you’re married for tax purposes. Exceptions apply for same sex marriages (the feds don’t recognize these), widows and widowers, annulments and married persons who live apart but meet very tailored criteria.
But another question: why would you want to file single? Generally speaking, it tends to be more advantageous to file as married filing jointly.
If, however, you have concerns about filing with your spouse or if you have a financial situation that lends itself to not filing jointly, you can file as married filing separate. It’s similar to filing single with one enormous exception: both spouses must agree to itemize (or not) on their return. One spouse may not elect to itemize if the other spouse takes the standard deduction.
I’m not sure which laws you’re worried about breaking but if it’s financial aid related (which is what I’m guessing from your question), check with your school’s financial aid office. They should be able to help. If it’s tax related, I’m not terribly worried so long as you haven’t previously file a false return. If you have, it’s not the end of the world: it can be fixed. Contact a tax pro if this situation is trickier than you’ve indicated or if you still have questions.
Like any good lawyer, I need to add a disclaimer: Unfortunately, it is impossible to give comprehensive tax advice over the internet, no matter how well researched or written. Before relying on any information given on this site, contact a tax professional to discuss your particular situation.
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Last year, while Californians were in the midst of a heated debate on the merits of Prop 8, Charles Merrill took activism into his own hands: he filed papers in Tax Court challenging the Defense of Marriage Act (DOMA). On July 13, the Tax Court ruled that Merrill was not entitled to relief. (Merrill v. Commissioner, T.C. Memo 2009-166).
Merrill is legally married in the state of California to Kevin Boyle, one of nearly 18,000 same-sex unions in state which remained valid after Prop 8 was upheld by courts earlier this year. His court challenge, however, had nothing to do with his marriage.
The question, according to the court was “whether petitioner, who was unmarried but in a committed relationship with another man during the years at issue, is entitled to married filing joint status.” The court found that he was not.
So it feels like the law is settled. Or maybe not.
This case wasn’t really about DOMA even though it was painted as a DOMA challenge. Merrill did not get married until 2008. His case, however, focused on the tax years 2004 and 2005, when he was single. Merrill believes that he should have been able to file as married while a resident of North Carolina since North Carolina does not recognize same sex marriages; the IRS said that he could not because he was not married. Additionally, Merrill believes that he should have been able to file as married when he moved to California; again, the IRS said that he could not because he was not yet married. The court agreed on both counts. In other words, Merrill wasn’t married, so the court found that he couldn’t file as married. Not groundbreaking stuff.
It wasn’t surprising, then, that the court refused to address the bigger issue of the constitutionality of DOMA, claiming that it was not relevant to Merrill’s case. Had they addressed that piece, that would have been interesting. The court would have been required to address DOMA had Merrill filed a federal joint return for 2008 (for which he was legally married). The IRS does not follow state law for recognizing same-sex marriages despite the fact that state law determines marital status for federal filing purposes, including the recognition of common law marriages and legal separations. However, DOMA, which defined marriage as “a legal union between one man and one woman as husband and wife” requires that the IRS not recognize same sex marriages.
In other words, you want to talk DOMA? File a bona fide DOMA challenge.
The rest of Merrill’s case is likewise a bit puzzling. Merrill had actually not filed with the IRS for either of the years in question (2004 and 2005). He has refused to file or pay federal taxes for the past several years as a protest. While I note that constitutional law isn’t my forte, I might have approached this case a little differently. It would make sense to me that, rather than file a case protesting filing status that Merrill never actually claimed (meaning that he never filed as married), a better route from a procedural standpoint would have been to file joint tax returns with his partner and then make the claim if opposed by the Service (which it certainly would have been). Would he have had a different result this way? Probably not. But I think it would have been a better argument and made a bigger statement.
This case may get talked up a bit at cocktail parties (on both sides) but for tax purposes, in the end, it really didn’t offer anything new.
(Hat Tip: Tax Prof Blog)
Taxpayer asks:
I PAY MY XWIFE SUPPORT CAN I CLAIM THAT MONEY ON MY TAXES?
Taxgirl says:
This is another one of those questions for which I have received a bunch of variations on a theme. It’s not just high profile divorcees like Britney Spears and Kevin Federline, pictured above, who have to deal with these financial issues. In any divorce, no matter how big or small the financial stakes, the same rules apply.
Generally, alimony is deductible to the payor as an “above the line” deduction which means that the taxpayer doesn’t have to itemize in order to claim it (from a tax policy standpoint, this is a pet peeve of mine but that’s a separate post). Alimony which is received by a taxpayer must be reported on a tax return as income.
The specific rules regarding alimony and divorce can be complicated; the information in this article only applies to alimony under divorce or separate maintenance agreements made after 1984.
In order to deduct alimony payments under a divorce or separation decree or agreement, the following requirements must be met:
1. You and your spouse or former spouse do not file a joint return with each other;
2. Alimony payments must be paid in cash, checks or money orders (in other words, noncash property settlements for cars, etc., are not considered alimony);
3. The payment must be considered alimony – the divorce decree or other agreement cannot state that the payment is for something other than alimony;
4. You and your former spouse cannot be members of the same household when you make the payment;
5. You have no liability to make any payment (in cash or property) after the death of your spouse or former spouse; and
6. Your payment is not treated as child support.
The last part is important because child support payments are never deductible. Additionally, child support which is received is never reportable as income.
If you do not make all of your payments for alimony and child support under your divorce decree or agreement or other judgment, the IRS will consider the amount paid first as child support, not alimony. In other words, if you are required to pay $1000 in child support and $500 in alimony and you pay $1000, you may not claim any deduction at all: child support is not deductible and the IRS considers your $1000 as child support payments. If you pay $1200, you may claim $200: child support is not deductible and the IRS considers your payment applied first as child support and the remainder as alimony.
Voluntary payments, meaning those not required by law, decree, settlement agreement or otherwise, do not qualify as alimony. This is an extremely important concept to understand. This means that payments made to a spouse simply to avoid the hassle of a divorce – or in contemplation of divorce by not required – would not be deductible.
Keeping those things in mind, this is why it’s important to have a writing of some kind that clearly delineates the division between alimony and child support. Don’t assume that since it all goes to the same pot, it has the same tax consequences. And don’t assume that it doesn’t need to be memorialized in a writing somewhere, it does in order to avoid confusion later.
For more information about divorce and taxes, check out my prior post on the subject.
Also remember that family law varies state by state, which may affect your federal tax status. I highly recommend consulting with a family law attorney and/or tax professional before making any financial or tax decisions relating to child support, alimony or other support.
Like any good lawyer, I need to add a disclaimer: Unfortunately, it is impossible to give comprehensive tax advice over the internet, no matter how well researched or written. Before relying on any information given on this site, contact a tax professional to discuss your particular situation.
Have a question? Ask the taxgirl!
(Image source: newscom)
