Taxpayer asks:

Hi There,

I am totally confused as to how we should file our taxes. By December 31st 2009 my husband and I had paperwork in the court in California that specifically states we are separated, a division of property and finances and an order for him to pay alimony. We have never lived together as the marriage failed on the honeymoon in 2008.
I have always lived in Colorado and have paid my own expenses entirely, including mortage and tuition.
I want to file single, but am not sure If we can.


Taxgirl says:

Filing status is determined by state law as of the last day of the tax year (December 31 for most taxpayers). I’m not sure what the rules are in California but if your state allows for a legal separation (and it sounds like it does from your comment about paperwork from court), and you are classified as legally separated, then you may file as single. If, however, your state does not offer legal separation, then you cannot file as single. You may only file as single if you are unmarried, divorced, or legally separated.

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Kelly Erb is a tax attorney and tax writer.


  1. “the marriage failed on the honeymoon in 2008”

    Yikes, there’s got to be one heck of a story in there somewhere.

  2. I am in this situation in California and also a tax preparer here. California is a community property state.. each claim 50% of the income and deductions for the year. Also, in California, you are NOT single until the divorce is granted and FINAL. As far as federal tax law goes, if the divorce isn’t final, and she can’t file as HOH (has a dependant she fully supports), she has to file Married File Jointly or Married File Seperately. If she lived in California, she (and her spouse) need to file an allocation worksheet and paper file to the IRS and the California Franchise Tax Board. It will take up to 8 weeks for a refund.

  3. As an Enrolled Agent in California I COMPLETELY agree with Suzi regarding filing status (Single filing status is not a legal option). Further, it is my understanding if both parties lived separately the entire year, there is no need for each to “allocate” income and expenses, if the taxpayer chooses Married filing Separate filing status. As a side issue, if the marriage “failed” on the honeymoom, how did you find a California Judge that would award Alimony/spousal support? Casey is correct, there is a story there!

  4. Suzi and Ed, I don’t know CA law but if she has a court-ordered legal separation agreement, that would work under federal law. My colleagues tell me that CA does allow for legal separation (dunno if they’re right). If it does, then why couldn’t she file single? Legal separation is considered unmarried (see Pub 504).

  5. Thanks Kelly. I have re-read the taxpayer’s original post and now think you are correct. California does allow for “Legal Separation,” which may be different from “had paperwork in the court in California that . . . ” Assuming the paperwork in the CA courts is actually a “final decree of legal separation,” the taxpayer could choose a filing status of “Single.” Ah, the fine, little details. 🙂

  6. But those fine, little details are what keeps this job so interesting, right? 😉

  7. Your filing status is single if, on the last day of the year, you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree, and you do not qualify for another filing status. If you have a qualifying child and meet the requirements, you can be Head of Household.

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