Whether or not you are considered married has significant consequences for federal income tax purposes. If you are considered married you can combine your income in a joint return and will generally pay less tax than you would if you filed separate returns using the single status. If you are considered married you could also use the married filing separately status, but you would generally pay more tax.
According to the IRS, a marriage means only a legal union between a man and woman as husband and wife. Same sex marriages and registered domestic partner relationships established by law in certain states are not recognized for federal income tax filing purposes. But in states that recognize same sex marriages and domestic partner relationships you may be able to file a state income tax return jointly.
If you live together but are not legally married, you cannot file a joint return for federal income tax purposes. But if you live together in a common law marriage that is recognized in the state where you now live or in the state where the common law marriage began, you can file a joint federal income tax return.
If you are legally married and living apart you can use either the married filing jointly or married filing separately status for federal income tax purposes.
The IRS indicates that if you are living apart from your spouse and do not file a joint return, you may be considered unmarried and could qualify to file as head of household. This could result in a lower tax. You would qualify for head of household status if your spouse did not live in your home during the last six months of the year, you paid more than half the cost of keeping up your home, and you have a child, stepchild, or foster child who lived in your home more than half the year and who you can claim as a dependent.
According to the IRS, you are considered unmarried for the whole year if you are divorced under a final decree by the last day of the year or you are legally separated under a divorce or separate maintenance decree. If you are separated under an interlocutory decree of divorce you are still considered married for federal income tax purposes and could file a joint return. Divorce and legal separation are determined according to state law.
You are also considered unmarried if you obtain a decree of annulment, meaning that no valid marriage ever existed. In this case you would have to file amended U.S. income tax returns for all tax years affected by the annulment that are not closed by the statute of limitations. This is generally three years after the due date of your original return. For example, if you had filed as married filing jointly, you would have to amend your filing status to single or head of household if you met the requirements.
If your spouse was a nonresident alien at any time during the year you are considered unmarried for federal income tax purposes and could not file a joint return. But if one spouse is a U.S. citizen or resident, he or she can elect to treat the nonresident spouse as a U.S. resident for federal income tax purposes. In this case you would both be subject to U.S. income tax on your worldwide income. You would have to file a joint return for the year you make this election. Then in later years you could file either jointly or separately. As indicated in IRS Publication 519, to make this election you would have to attach a statement to the joint return you file the first year.
If your spouse died during the year, you are considered married for the whole year and can file a joint return. For the next two years you could qualify for the tax benefits of filing as qualifying widow(er) with dependent child. If you remarry before the end of the year you could file a joint return with your new spouse. In that case, the filing status of your deceased spouse that year would be married filing separately.
If you qualify to use the married filing jointly status, you will generally pay less tax if you file jointly. But you should calculate your tax both ways, married filing jointly and married filing separately, to be sure.
Sources:
Publication 501, Exemptions, Standard Deduction, and Filing Information, IRS
Publication 504, Divorced or Separated Individuals, IRS
Publication 519, U.S. Tax Guide for Aliens, IRS
Reference:
- Publication 505 – Tax Withholding and Estimated Tax: www.irs.gov/pub/irs-pdf/p505.pdf
- Publication 555 – Community Property: www.irs.gov/pub/irs-pdf/p555.pdf
- Publication 971 – Innocent Spouse Relief: www.irs.gov/pub/irs-pdf/p971.pdf
