For most people, picking a filing status at tax time is a simple task. You can choose from five statuses, most of which, at least on their surface, are easy to understand. But occasionally, some situations make it less obvious what the correct election is for your situation. Let’s take a look at one such example.

Recently, I received a question about whether an individual would be considered married or not. They got married to another person years ago. Like half of all marriages, the union did not last. Now the person asking the question had picked up their life, lived in another state, and had not spoken to their former spouse in years. But they had never formally finalized their divorce. Most states used to recognize a form of common-law marriages, so there must be some form of common-law divorce, right? And more importantly, what does the IRS consider marriage to start and end?

Am I Married?

In general, the IRS will recognize a marriage if your state does. While this rule looks simple on the surface, it does mean that states that allow for common law marriages can still result in a marriage in the eyes of the IRS. While most states have done away with common-law marriages, eight states still recognize them. This will follow you even after you leave that state.

Am I Divorced?

The question of divorce can similarly be complicated. Suppose you live apart but have not obtained a divorce decree or living under a separate maintenance agreement. In that case, you are still considered married. Even if you have an interlocutory order, that is not enough for the IRS. If you have not received a final decree or separate maintenance agreement, you can choose between Married Filing Jointly or Married Filing Separate.

But there is an exception to this. In some instances, you can file as Head of Household even if you are married. If you meet all the other requirements for Head of Household, such as having a dependent in the house you paid for more than half the expenses and are “considered unmarried,” you can elect to file Head of Household instead of a Married status. To be considered unmarried, you have to be living separately from your spouse for at least six months. It cannot be due to a temporary absence, such as an illness, work, or military deployment. It is in this limited case that you can select a different status than Married.

Why Does it Matter?

Each filing status has its benefits and trade-offs. In the case of a couple that is separated, Married Filing Jointly probably does not make sense. But it may make sense for your situation to try for Head of Household rather than Married Filing Separate. If you would like to discuss your case more, contact us to set up a time to talk.