Married Individuals Living Apart Treated as Unmarried

By | March 5, 2015

A married individual who isn’t legally separated but who files a separate return, maintains a household for his or her dependent child, furnishes more than half the cost of maintaining that household, and whose spouse isn’t a member of the household during the last six months of the tax year is treated as an unmarried individual, for purposes of those Code Secs. that refer to this rule. So, a taxpayer who qualifies as unmarried under this rule generally can, for example, file as head of household.


Abandoned Spouse Rule

The rule is sometimes called the “abandoned spouse” rule. However, “abandoned spouse” isn’t always an appropriate description. The above requirements for treatment as an unmarried individual can be satisfied where a husband and wife separate by mutual consent. Moreover, it’s possible for both spouses to qualify as unmarried under this rule in the same year.


What is Considered an Abandoned Spouse for IRS Purposes?

An individual who’s married isn’t considered married, for purposes of those Code Sections that refer to these Code Sec. 7703(b) rules if the individual meets the following requirements:

(1) The individual files a separate return

(2) The individual maintains as his or her home a household, which, for more than half the tax year, is the principal place of abode of a child for whom the individual is entitled to a dependency deduction, or would have been so entitled but for the release of the exemption by the custodial parent to the noncustodial parent or the allocation of the exemption to the noncustodial parent under a pre-’85 qualified instrument,

(3) The individual furnishes more than one-half the cost of maintaining the household during the tax year

(4) During the last six months of the tax year, the individual’s spouse isn’t a member of the household


Qualifying as Unmarried

To qualify as unmarried, a married individual must file a separate return. The Tax Court has ruled that this requirement was met where the individual filed no return at all. In that case, the court said that it was particularly compelled to reach its conclusion because of the fact that taxpayer’s filing a Tax Court petition precluded her from filing a joint return.

A married individual who isn’t legally separated is treated as unmarried if he files a separate return and his spouse isn’t a member of the household during the last six months of the tax year.


Married Individual with Different Houses

A married individual isn’t treated as unmarried if the individual’s spouse occupies the same residence, even if they maintain separate bedrooms and bathrooms, or if the spouse moves into the basement while taxpayer and his children reside in the upper levels. There is a need for a “bright line” test that doesn’t depend on a factual inquiry into the intimate living details of an estranged couple. Therefore, a court won’t explore the quality of a marriage or membership in a household when a husband and wife live together under one roof and adopt some form of “constructive absence” under the circumstances.  Congress didn’t intend spouses living under the same roof to be treated as living “separated and apart.”