Separated but not yet Divorced or Legally Separated, What to do when Filing Taxes.

Amanda N. Gamble Edmonds Lawyer

So, you’ve found yourself legally married but no longer holding yourself out to the world as a married couple. This does not necessarily require taking the step of living in separate residences. It simply means that, for all practical purposes, you are married in name only.  You also do not need a decree of legal separation, which would require a similar process to getting a full dissolution, except for ending the marriage. You are still legally married.

So, what happens comes tax season? You have two choices. You can choose “married filing jointly” or “married filing separate.” You are still considered legally married until you receive a formal divorce decree. The IRS considers you married for the entire year when you do not have a legal separation decree or divorce decree on December 31st. So, a married person cannot choose to file as single. To file jointly, both spouses must agree to do so.

Washington does not have a domestic relations law (RCW Title 26) that requires a couple to select either option. However, it is generally a good idea for couples that are going through a divorce to calculate their tax liability as separate and joint. This can determine if filing separate makes financial sense, as it can be quite advantageous to both parties to select “married filing jointly”. This is largely because there are many tax benefits only available for couples that are married filing jointly. However, a key factor to keep in mind is unless there is an agreement or court order stating otherwise, both you and your spouse have joint and several liability. Though, it is not uncommon for a party to opt for financial independence and file “married filing separate” even if it means an increased tax liability. 

If you do not have an agreement or court order stating otherwise and are physically separated, children dependents are claimed by the person with whom the child(ren) spent a greater number of nights with during the year. If you are separated but still living in the same home, and the child(ren) lived each parent equally, and a party wants to file separately, the parent who has a higher adjusted gross income will be permitted to claim the child(ren).

To learn more about Separated but not yet Divorced or Legally Separated, What to do when Filing Taxes., please contact Beresford Booth at or by phone at (425) 776-4100.

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