Publication 504
Divorced or Separated Individuals

For use in preparing 2002 Returns

Important Reminders

Relief from joint liability.   In some cases, one spouse may be relieved of joint liability for tax, interest, and penalties on a joint tax return. For more information, see Relief from joint liability under Joint Return.

Social security numbers for dependents.   You must include the taxpayer identification number (generally the social security number) of every person for whom you claim an exemption. See Exemptions for Dependents under Exemptions, later.

Individual taxpayer identification number (ITIN).   The IRS will issue an ITIN to a nonresident or resident alien who does not have and is not eligible to get a social security number (SSN). To apply for an ITIN, Form W-7, Application for IRS Individual Taxpayer Identification Number, must be filed with the IRS. It usually takes about 30 days to get an ITIN. The ITIN is entered wherever an SSN is requested on a tax return. If you are required to include another person's SSN on your return and that person does not have and cannot get an SSN, enter that person's ITIN.

Change of address.   If you change your mailing address, be sure to notify the Internal Revenue Service. You can use Form 8822, Change of Address. Mail it to the Internal Revenue Service Center for your old address. (Addresses for the Service Centers are on the back of the form.)

Change of name.   If you change your name, be sure to notify the Social Security Administration using Form SS-5, Application for a Social Security Card.

Photographs of missing children.   The Internal Revenue Service is a proud partner with the National Center for Missing and Exploited Children. Photographs of missing children selected by the Center may appear in this publication on pages that would otherwise be blank. You can help bring these children home by looking at the photographs and calling 1-800-THE-LOST (1-800-843-5678) if you recognize a child.

Introduction

This publication explains tax rules that apply if you are divorced or separated from your spouse. It covers general filing information and can help you choose your filing status. It also can help you decide which exemptions you are entitled to claim, including exemptions for dependents.

The publication also discusses payments and transfers of property that often occur as a result of divorce and how you must treat them on your tax return. Examples include alimony, child support, other court-ordered payments, property settlements, and transfers of individual retirement arrangements. In addition, this publication also explains deductions allowed for some of the costs of obtaining a divorce and how to handle tax withholding and estimated tax payments.

The last part of the publication explains special rules that may apply to persons who live in community property states.

Comments and suggestions.   We welcome your comments about this publication and your suggestions for future editions.

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Useful Items

You may want to see:

Publications

• 501   Exemptions, Standard Deduction, and Filing Information
• 544   Sales and Other Dispositions of Assets
• 555   Community Property
• 590   Individual Retirement Arrangements (IRAs)
• 971   Innocent Spouse Relief (And Separation of Liability and Equitable Relief)

Form (and Instructions)

• 8332   Release of Claim to Exemption for Child of Divorced or Separated Parents
• 8379   Injured Spouse Claim and Allocation
• 8857   Request for Innocent Spouse Relief (And Separation of Liability and Equitable Relief)

Filing Status

Your filing status is used in determining whether you must file a return, your standard deduction, and the correct tax. It may also be used in determining whether you can claim certain deductions and credits. The filing status you can choose depends partly on your marital status on the last day of your tax year.

Marital status.   If you are considered unmarried, your filing status is single or, if you meet certain requirements, head of household or qualifying widow(er). If you are considered married, your filing status is either married filing a joint return or married filing a separate return. For information about the single and qualifying widow(er) filing statuses, see Publication 501.

Considered unmarried.   You are considered unmarried for the whole year if either of the following applies.

1. You have obtained a final decree of divorce or separate maintenance by the last day of your tax year. You must follow your state law to determine if you are divorced or legally separated.

   Exception. If you and your spouse obtain a divorce in one year for the sole purpose of filing tax returns as unmarried individuals, and at the time of divorce you intend to remarry each other and do so in the next tax year, you and your spouse must file as married individuals.

2. You have obtained a decree of annulment, which holds that no valid marriage ever existed. You must file amended returns (Form 1040X, Amended U.S. Individual Income Tax Return) for all tax years affected by the annulment that are not closed by the statute of limitations. The statute of limitations generally does not end until 3 years after the due date of your original return. On the amended return you will change your filing status to single, or if you meet certain requirements, head of household.

Considered married.   You are considered married for the whole year if you are separated but you have not obtained a final decree of divorce or separate maintenance by the last day of your tax year. An interlocutory decree is not a final decree.

Exception.   If you live apart from your spouse, under certain circumstances you may be considered unmarried and can file as head of household. See Head of Household, later.

Joint Return

If you are married, you and your spouse can choose to file a joint return. If you file jointly, you both must include all your income, exemptions, deductions, and credits on that return. You can file a joint return even if one of you had no income or deductions.

If both you and your spouse have income, you should usually figure your tax on both a joint return and separate returns to see which gives you the lower tax.

To file a joint return, at least one of you must be a U.S. citizen or resident at the end of the tax year. If either of you was a nonresident alien at any time during the tax year, you can file a joint return only if you agree to treat the nonresident spouse as a resident of the United States. This means that your combined worldwide incomes are subject to U.S. income tax. These rules are explained in Publication 519, U.S. Tax Guide for Aliens.

Signing a joint return.   Both you and your spouse must sign the return, or it will not be considered a joint return.

Joint and individual liability.   Both you and your spouse are responsible, jointly and individually, for the tax and any interest or penalty due on your joint return. This means that one spouse may be held liable for all the tax due even if all the income was earned by the other spouse.

Divorced taxpayers.   If you are divorced, you are still jointly and individually responsible for any tax, interest, and penalties due on a joint return for a tax year ending before your divorce. This responsibility applies even if your divorce decree states that your former spouse will be responsible for any amounts due on previously filed joint returns.

Relief from joint liability.   In some cases, a spouse will be relieved of the tax, interest, and penalties on a joint return. You can ask for relief no matter how small the liability.

There are three types of relief available.

1. Separation of liability, which may apply to joint filers who are divorced, widowed, legally separated, or have not lived together for the past 12 months.
2. Innocent spouse relief, which may apply to all joint filers.
3. Equitable relief, which applies to all joint filers.

Innocent spouse relief and separation of liability apply only to items incorrectly reported on the return. If a spouse does not qualify for innocent spouse relief or separation of liability, the IRS may grant equitable relief.

Each of these kinds of relief is different, and they each have different requirements. You must file Form 8857 to request any of these kinds of relief. Publication 971 explains these kinds of relief and who may qualify for them.

Tax refund applied to spouse's debts.   The overpayment shown on your joint return may be used to pay the past-due amount of your spouse's debts. You can get your share of the refund if you qualify as an injured spouse.

Injured spouse.   You are an injured spouse if you file a joint return and all or part of your share of the overpayment was, or is expected to be, applied against your spouse's past-due federal tax, state income tax, child or spousal support, or federal nontax debt, such as a student loan. You should file Form 8379, if you meet all three of the following conditions.

1. You are not required to pay the past-due amount.
2. You reported income such as wages, taxable interest, etc., on the joint return.
3. You made and reported payments such as federal income tax withheld from your wages or estimated tax payments or you claimed refundable credits (such as the earned income credit) on the joint return.

If all three of the above apply and you want your share of the overpayment shown on the joint return refunded to you, complete Form 8379. If your main home was in a community property state (see Community Property, later), you can file Form 8379 if only item (1) applies. Follow the instructions on the form.

Refunds that involve community property states must be divided according to local law. If you live in a community property state in which all community property is subject to the debts of either spouse, your entire refund can be used to pay those debts.

Separate Returns

If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. For information on exemptions you can claim on your separate return, see Exemptions, later.

Community or separate income.   If you live in a community property state and file a separate return, your income may be separate income or community income for income tax purposes. For more information, see Community Income under Community Property, later.

Separate liability.   If you and your spouse file separately, you each are responsible only for the tax due on your own return.

Itemized deductions.   If you and your spouse file separate returns and one of you itemizes deductions, the other spouse will not qualify for the standard deduction and should also itemize deductions.

Dividing itemized deductions.   You may be able to claim itemized deductions on a separate return for certain expenses that you paid separately or jointly with your spouse. See Table 1.

Separate returns may give you a higher tax.   Some married couples file separate returns because each wants to be responsible only for his or her own tax. But in almost all instances, if you file separate returns, you will pay more combined federal tax than you would with a joint return. This is because special rules apply if you file a separate return. These rules include the following items.

1. Your tax rates will increase at income levels that are lower than those for a joint return filer.
2. Your exemption amount for figuring the alternative minimum tax will be half of that allowed a joint return filer.
3. You cannot take the credit for child and dependent care expenses in most cases.
4. You cannot take the earned income credit.
5. You cannot take the exclusion or credit for adoption expenses in most instances.
6. You cannot take the credit for higher education expenses, the deduction for student loan interest, or the deduction for qualified tuition and related expenses.
7. You cannot exclude the interest from qualified savings bonds that you used for higher education expenses.
8. If you lived with your spouse at any time during the tax year:
   1. You cannot claim the credit for the elderly or the disabled,
   2. You will have to include in income up to 85% of any social security or equivalent railroad retirement benefits you received, and
   3. You cannot roll over amounts from a traditional IRA into a Roth IRA.
9. Your income limits that reduce the child tax credit, retirement savings contributions credit, itemized deductions, and amount you can claim for exemptions will be half of the limits allowed a joint return filer.
10. Your capital loss deduction limit is $1,500 (instead of $3,000 on a joint return).
11. Your basic standard deduction, if allowable, is half of that allowed a joint return filer. See Itemized deductions, earlier.

Joint return after separate returns.   If either you or your spouse files a separate return, you can change to a joint return any time within 3 years from the due date (not including extensions) of the separate returns. This applies even if either of you filed as head of household. Use Form 1040X.

Separate returns after joint return.   After the due date of your return, you and your spouse cannot file separate returns if you previously filed a joint return.

Exception.   A personal representative for a decedent can change from a joint return elected by the surviving spouse to a separate return for the decedent. The personal representative has one year from the due date of the joint return to make the change.

Table 1. Itemized Deductions on Separate Returns This table shows itemized deductions you can claim on your separate return whether you paid the expenses separately with your own funds or jointly with your spouse. Caution: If you live in a community property state, these rules do not apply. See Community Property.

Head of Household

You may be eligible to file as head of household if you meet the requirements discussed later.

Filing as head of household has the following advantages.

1. You can claim the standard deduction even if your spouse files a separate return and itemizes deductions.
2. Your standard deduction is higher than is allowed on a single or married filing separate return.
3. Your tax rate may be lower than it is on a single or married filing separate return.
4. You may be able to claim certain credits (such as child care credit and earned income credit) you cannot claim on a married filing separate return.
5. Your income limits that reduce the child tax credit, itemized deductions, and the amount you can claim for exemptions will be more than the limits on a single or a married filing separate return.

Requirements.   You can file as head of household only if you were unmarried or considered unmarried on the last day of the year. You also must have paid more than half the cost of keeping up a home that was the main home for more than half the year (except for temporary absences, such as for school) for you and any of the following qualifying persons.

1. Certain unmarried children. This includes your unmarried child, grandchild, stepchild, foster child, or adopted child. A foster child must qualify as your dependent and must have lived in your home for the entire year.
2. Certain married children. This includes your married child, grandchild, stepchild, foster child, or adopted child for whom you can claim an exemption. This also includes your married child, grandchild, stepchild, or adopted child for whom you could claim an exemption except that:
   1. By your written declaration you allow the noncustodial parent to claim the exemption, or
   2. The noncustodial parent provided at least $600 for the support of the dependent and claims the exemption under a pre-1985 agreement.
3. Other relatives. This includes any other relative for whom you can claim an exemption. However, your parent for whom you can claim an exemption does not have to live with you. (See Father or mother, later.) For a list of persons who are relatives for purposes of these requirements, see 1. Member of Household or Relationship Test under Dependency Tests, later.

Your married child or other relative will not qualify you as a head of household if you claim an exemption for that person under a multiple support agreement (discussed later).

Father or mother.   If your parent for whom you can claim an exemption does not live with you, you can file as head of household if you paid more than half the cost of keeping up a home that was your parent's main home for the entire year. This includes paying more than half the cost of keeping your parent in a rest home or home for the elderly.

Considered unmarried.   Even if you are married, you will be considered unmarried on the last day of the year if you meet all of the following tests.

1. You file a separate return.
2. You paid more than half the cost of keeping up your home for the tax year.
3. Your spouse did not live in your home during the last 6 months of the tax year.
4. Your home was, for more than half the year, the main home of your child, stepchild, adopted child, or for the entire year, the main home for your foster child. You generally must be able to claim an exemption for your child. However, you can still meet this test if you cannot claim an exemption for your child only because:
   1. By your written declaration you allow the noncustodial parent to claim the exemption, or
   2. The noncustodial parent provided at least $600 for the support of the child and claims the exemption under a pre-1985 agreement.

Nonresident alien spouse.   If your spouse was a nonresident alien at any time during the tax year, and you have not chosen to treat your spouse as a resident alien, you are considered unmarried for head of household purposes. However, your spouse is not a qualifying person for head of household purposes. You must have paid most of the cost of keeping up a home that was the main home for most of the year for you and a qualifying person (other than your spouse) and meet the other requirements to file as head of household.

Keeping up a home.   You are keeping up a home only if you pay more than half the cost of its upkeep. This includes rent, mortgage interest, taxes, insurance on the home, repairs, utilities, and food eaten in the home. This does not include the cost of clothing, education, medical treatment, or transportation for any member of the household.

More information.   For more information on filing as head of household, get Publication 501.

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