Tax Brake with Robert G. Nath, Esq.

You are, of course, “married” in the usual sense and the tax sense if you married as of the close of the tax year, December 31 for most people. But if your spouse died during the year, you are “married” or not as of the date of death. So you could have a situation where divorce was pending when a spouse dies; you are still tax-married.

You are not “married” if you are legally separated from your spouse under a decree of divorce or of separate maintenance. This means the instrument must be written; informal separations don't result in unmarried status. This is of course important in determining filing status, among other things.

The code says that certain individuals who live apart from each other are “unmarried” for tax purposes. This distinction is important for head of household status. To attain this status, you must be legally married, file a separate tax return, and maintain a separate household. During the LAST 6 months of the tax year, the spouse can't be a “member of such household.” (Technically, this means if Spouse waltzes in from June 1 through July 1, you're “married” for tax purposes.) Also, the household must constitute the principal place of abode, for more than one-half of the tax year, of a child who is your dependent for tax purposes.

As you can see, the whole area is very confusing. So much so that Congress is in the middle of trying to reform the whole thing. The idea is to remove all the overlapping, conflicting, downright confusing definitions of “married,” “child”, “dependent,” and others and to harmonize and simplify the whole field. Let's hope it works, and soon.

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