Ask The Taxgirl: Still Married After All These Years?

Taxpayer asks:

Tax girl, I have been seperated from my wife for over 20 years. But we have never had a legal seperation on paper.
Can I file single or do I still have to file Married filing seperate?
Thank you for any information you can give.

Taxgirl says:

The feds look to state law for the answer to this one. Your filing status, for tax purposes, is determined as of the last day of the tax year (December 31). You can file as “single” if you were legally separated or divorced according to the laws of your state as of that date. If you live in a state like Pennsylvania where there is no legal separation, your choices are only “married” or “divorced.” If you’re still legally married, you must file as such (so it sounds like, from your question, that you would file as MFS – married filing separately).

There is an exception to this rule which might apply: you may be considered “unmarried” and eligible to file as Head of Household (HOH) if you meet certain criteria. That criteria can be found at my prior post on filing status.

It’s not that odd a situation. I’ve had clients married for much longer than 20 years that have refused to get a divorce for a number of reasons – religion, finances, etc. Sometimes, it just didn’t seem convenient to “bother” with a divorce. But remember that your legal marital status affects other facets of your finances, too, such as inheritance/estate tax and intestacy and probate laws. And it makes it awfully hard to find a date… 😉

For more on divorce and taxes, check out this prior post that I wrote for The Modern Woman’s Divorce Guide.

Before you go: be sure to read my disclaimer. Remember, I’m a lawyer and we love disclaimers.
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Kelly Phillips Erb

Kelly Phillips Erb is a tax attorney, tax writer, and podcaster.

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