Divorcing spouses can file income tax returns as unmarried individuals prior to dissolution of marriage.

• Author: Frumkes, Melvyn B.

If the divorcing spouses are married at the end of the year, it is usually, but not always,(1) beneficial to file joint tax returns. However, if one spouse refuses to join the other in a joint return,(2) there is still an advantage to a spouse in filing as an unmarried individual rather than as married, filing separately.(3) This can be done but only under certain allowable circumstances, notwithstanding the parties are married. Although numerous Florida attorneys believe that the entry of temporary alimony orders in Florida dissolution of marriage proceedings or proceedings for alimony unconnected with dissolution afford those requisite conditions,(4) the Internal Revenue Service is unlikely to agree. However, under stated conditions, married Florida taxpayers may avail themselves of being able to file their federal tax returns as unmarried persons.

Legally Separated Spouses

* Excerpts From I.R.C. [sections] 7703

Sec. 7703. Determination of marital status. (a) General Rule.

For purposes of part V of subchapter B of chapter 1 and those provisions of this title which refer to this subsection--

(1) the determination of whether an individual is married shall be made as of the close of his taxable year; except that if his spouse dies during his taxable year such determination shall be made as of the time of such death; and

(2) an individual legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married.

Decree of Separate Maintenance Required

Taxpayers, although still legally married (i.e., not yet finally divorced), may file their tax returns as individuals as if unmarried, provided there is a decree, order, or judgment for "separate maintenance" which legally separates the spouses.

The key consideration is that to qualify for filing as an unmarried individual while still married, there must be a decree, order, or judgment of legal separation.(5) In other words, the marital status of the parties must have changed by court order, judgment, or decree. The question as to whether a taxpayer is "legally separated" under the provisions of IRC [sections] 7703(a)(2) is to be determined in accordance with the laws of the state of the parties' domicile.(6) The proper inquiry, the court said in Boyer v. Commissioner, 732 F.2d 191, 194 (D.C. Cir. 1984):

[I]s not whether a state order of separate maintenance affects marriage status under applicable state law; rather the proper inquiry is whether an order of separate maintenance affects marriage status in such a way that it is deemed a legal separation under applicable state law. See Capodanno V. Commissioner, 602 F.2d 64, 67 (3d Cir. 1979); Seaman v. Commissioner, 479 F.2d 336, 338 (9th Cir. 1973) ("since a California interlocutory [divorce] decree does not dissolve the marriage, the spouses are still married for federal tax purposes"). In other words, a party must be legally separated under state law in order to be eligible to file as single for federal income tax purposes.

Even in states that have statutes that provide for proceedings which will legally separate the spouses, a temporary order for support in such action will not qualify.(7)

In Capodanno v. Commissioner, 602 F.2d 64 (3d Cir. 1979), it was held that the wife was not entitled to file as an unmarried individual just because she obtained an award from a New Jersey court for separate maintenance. The Tax Court was affirmed in holding that the parties "were not legally separated under the [New Jersey] separate maintenance decree."(8) The court reasoned: "Whether [a spouse] may file as an unmarried individual depends on whether she is legally separated ... within the meaning of 26 U.S.C. 143(2).(9) This, in turn, depends upon the consequences of a separate maintenance decree under New Jersey law."

The court analyzed New Jersey law and found that the particular provision under which the decree of separate maintenance was obtained did not...