Divorce decree or separation agreement that went into effect after 2008.(p1)
Beginning with 2009 tax returns, a noncustodial parent claiming an exemption for a child can no longer attach certain pages from a divorce decree or separation agreement instead of Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, if the decree or agreement went into effect after 2008. This noncustodial parent must attach Form 8332 or a similar statement signed by the custodial parent and whose only purpose is to release a claim to exemption. See Children of Divorced or Separated Parents (or Parents Who Live Apart)
Definition of qualifying child revised.(p1)
Beginning in 2009, the following changes have been made to the definition of a qualifying child.
- To be your qualifying child, a child must be younger than you unless the child is permanently and totally disabled.
- A child cannot be your qualifying child if he or she files a joint return, unless the return was filed only as a claim for refund.
- If the parents of a child can claim the child as a qualifying child but no parent so claims the child, no one else can claim the child as a qualifying child unless that person's AGI is higher than the highest AGI of any parent of the child who can claim the child.
- Your child is a qualifying child for purposes of the child tax credit only if you can and do claim an exemption for him or her.
Revoking a release of claim to a dependent's exemption.(p2)taxmap/pubs/p504-000.htm#en_us_publink1000207714
Definition of custodial parent changed.(p2)taxmap/pubs/p504-000.htm#en_us_publink1000175803
Relief from joint liability.(p2)taxmap/pubs/p504-000.htm#en_us_publink1000175806
Social security numbers for dependents.(p2)
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
Individual taxpayer identification number (ITIN).(p2)
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, file Form W-7, Application for IRS Individual Taxpayer Identification Number, with the IRS. It takes about 6 to 10 weeks 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. taxmap/pubs/p504-000.htm#en_us_publink1000175810
Change of address.(p2)
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.)taxmap/pubs/p504-000.htm#en_us_publink1000175811
Change of name.(p2)
If you change your name, be sure to notify the Social Security Administration using Form SS-5, Application for a Social Security Card. taxmap/pubs/p504-000.htm#en_us_publink1000175812
Change of withholding.(p2)
If you have been claiming a withholding exemption for your spouse, and you divorce or legally separate, you must give your employer a new Form W-4, Employee's Withholding Allowance Certificate, within 10 days after the divorce or separation showing the correct number of exemptions.taxmap/pubs/p504-000.htm#en_us_publink1000175813
Photographs of missing children.(p2)
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.
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.taxmap/pubs/p504-000.htm#en_us_publink1000175814
We welcome your comments about this publication and your suggestions for future editions.
You can write to us at the following address:
Internal Revenue Service
Individual Forms and Publications Branch
1111 Constitution Ave. NW, IR-6526
Washington, DC 20224
We respond to many letters by telephone. Therefore, it would be helpful if you would include your daytime phone number, including the area code, in your correspondence.
You can email us at *email@example.com
. (The asterisk must be included in the address.) Please put "Publications Comment" on the subject line. Although we cannot respond individually to each email, we do appreciate your feedback and will consider your comments as we revise our tax products.
to download forms and publications, call 1-800-829-3676, or write to the following address and receive a response within 10 days after your request is received.
Internal Revenue Service
1201 N. Mitsubishi Motorway
Bloomington, IL 61705-6613
If you have a tax question, check the information available on www.irs.gov
or call 1-800-829-1040. We cannot answer tax questions sent to either of the above addresses.
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 Form (and Instructions) 8332: Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent 8379: Injured Spouse Allocation 8857: Request for Innocent Spouse Relief taxmap/pubs/p504-000.htm#en_us_publink1000175818
See How To Get Tax Help
near the end of this publication for information about getting publications and forms.
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 other deductions and credits. The filing status you can choose depends partly on your marital status on the last day of your tax year. taxmap/pubs/p504-000.htm#en_us_publink1000175819
If you are unmarried, your filing status is single or, if you meet certain requirements, head of household or qualifying widow(er). If you are 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.
For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife. taxmap/pubs/p504-000.htm#en_us_publink1000175820
You are unmarried for the whole year if either of the following applies.
- 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.
- 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.
You are 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. taxmap/pubs/p504-000.htm#en_us_publink1000175822
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
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 (using the filing status of married filing separately) to see which gives the two of you the lower combined tax.
To file a joint return, at least one of you must be a U.S. citizen or resident alien 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. taxmap/pubs/p504-000.htm#en_us_publink1000175827
Both you and your spouse generally must sign the return, or it will not be considered a joint return. taxmap/pubs/p504-000.htm#en_us_publink1000175828
Both you and your spouse may be held 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. taxmap/pubs/p504-000.htm#en_us_publink1000175829
If you are divorced, you are 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. taxmap/pubs/p504-000.htm#en_us_publink1000175830
In some cases, a spouse may 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.
- Innocent spouse relief.
- Separation of liability, which applies to joint filers who are divorced, widowed, legally separated, or who have not lived together for the 12 months ending on the date election of this relief is filed.
- Equitable relief.
Innocent spouse relief applies only to items incorrectly reported on or omitted from the return. If a spouse does not qualify for innocent spouse relief or separation of liability, or relief from liability arising from community property law, the IRS may grant equitable relief.
Each of these kinds of relief have different requirements. You must file Form 8857 to request relief under any of these categories. Publication 971 explains these kinds of relief and who may qualify for them. You can also find information on our website at www.irs.gov
The overpayment shown on your joint return may be used to pay the past-due amount of your spouse's debts. This includes your spouse's federal tax, state income tax, child or spousal support payments, or a federal nontax debt, such as a student loan. You can get a refund of your share of the overpayment if you qualify as an injured spouse. taxmap/pubs/p504-000.htm#en_us_publink1000175834
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 debts. An injured spouse can get a refund for his or her share of the overpayment that would otherwise be used to pay the past-due amount.
To be considered an injured spouse, you must:
- Have made and reported tax payments (such as federal income tax withheld from wages or estimated tax payments), or claimed a refundable tax credit, such as the earned income credit or additional child tax credit on the joint return, and
- Not be legally obligated to pay the past-due amount.
If the injured spouse's permanent home is in a community property state, then the injured spouse must only meet (2) above. For more information, see Publication 555.
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 is generally used to pay those debts.
If you are an injured spouse, you must file Form 8379 to have your portion of the overpayment refunded to you. Follow the instructions for the form.
If you have not filed your joint return and you know that your joint refund will be offset, file Form 8379 with your return. You should receive your refund within 14 weeks from the date the paper return is filed or within 11 weeks from the date the return is filed electronically.
If you filed your joint return and your joint refund was offset, file Form 8379 by itself. When filed after offset, it can take up to 8 weeks to receive your refund. Do not attach the previously filed tax return, but do include copies of all Forms W-2 and W-2G for both spouses and any Forms 1099 that show income tax withheld.
An injured spouse claim is different from an innocent spouse relief request. An injured spouse uses Form 8379 to request an allocation of the tax overpayment attributed to each spouse. An innocent spouse uses Form 8857 to request relief from joint liability for tax, interest, and penalties on a joint return for items of the other spouse (or former spouse) that were incorrectly reported on or omitted from the joint return. For information on innocent spouses, see Relief from joint liability
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
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
If you and your spouse file separately, you each are responsible only for the tax due on your own return.taxmap/pubs/p504-000.htm#en_us_publink1000175845
If you and your spouse file separate returns and one of you itemizes deductions, the other spouse cannot use the standard deduction and should also itemize deductions. taxmap/pubs/p504-000.htm#en_us_publink1000175846
Table 1. Itemized Deductions on Separate Returns This table shows itemized deductions you can claim on your married filing 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.
| IF you paid ... || || AND you ... || || || THEN you can deduct on your separate federal return... || |
| ||medical expenses|| ||paid with funds deposited in a joint checking account in which you and your spouse have an equal interest|| || ||half of the total medical expenses, subject to certain limits, unless you can show that you alone paid the expenses. || |
| ||state income tax|| ||file a separate state income tax return|| || ||the state income tax you alone paid during the year. || |
| || || ||file a joint state income tax return and you and your spouse are jointly and individually liable for the full amount of the state income tax|| || ||the state income tax you alone paid during the year. || |
| || || ||file a joint state income tax return and you |
are liable for only your own share of state
| || ||the smaller of: |
- the state income tax you alone paid during the year, or
- the total state income tax you and your spouse paid during the year multiplied by the following fraction. The numerator is your gross income and the denominator
is your combined gross income.
| ||property tax|| ||paid the tax on property held as tenants by the entirety|| || ||the property tax you alone paid. || |
| ||mortgage interest|| ||paid the interest on a qualified home1 held |
as tenants by the entirety
| || ||the mortgage interest you alone paid. || |
| ||casualty loss|| ||have a casualty loss on a home you own |
as tenants by the entirety
| || ||half of the loss, subject to the deduction limits. Neither spouse may report the total casualty loss. || |
| 1 For more information on a qualified home and deductible mortgage interest, see Publication 936, Home Mortgage Interest Deduction.|taxmap/pubs/p504-000.htm#en_us_publink1000175852
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
Some married couples file separate returns because each wants to be responsible only for his or her own tax. There is no joint liability. 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 the following special rules apply if you file a separate return.
- Your tax rate generally will be higher than it would be on a joint return.
- Your exemption amount for figuring the alternative minimum tax will be half of that allowed a joint return filer.
- You cannot take the credit for child and dependent care expenses in most cases.
- You cannot take the earned income credit.
- You cannot take the exclusion or credit for adoption expenses in most instances.
- You cannot take the credit for higher education expenses (American opportunity, Hope, and lifetime learning credits), the deduction for student loan interest, or the tuition and fees deduction.
- You cannot exclude the interest from qualified savings bonds that you used for higher education expenses.
- If you lived with your spouse at any time during the tax year:
- You cannot claim the credit for the elderly or the disabled,
- You will have to include in income more (up to 85%) of any social security or equivalent railroad retirement benefits you received, and
- You cannot roll over amounts from an eligible retirement plan (other than a Roth IRA or designated Roth account) into a Roth IRA.
- Your income limits that reduce the child tax credit, retirement savings contributions credit, itemized deductions, and the deduction for personal exemptions will be half of the limits allowed a joint return filer.
- Your capital loss deduction limit is $1,500 (instead of $3,000 on a joint return).
- Your basic standard deduction, if allowable, is half of that allowed a joint return filer. See Itemized deductions, earlier.
- Your first-time homebuyer credit is limited to $4,000 (instead of $8,000 if you filed a joint return). If the special rule for long-time residents of the same main home applies, the credit is limited to $3,250 (instead of $6,500 if you filed a joint return).
If either you or your spouse (or both of you) file a separate return, you generally can change to a joint return any time within 3 years from the due date (not including extensions) of the separate return or returns. This applies to a return either of you filed claiming married filing separately, single, or head of household filing status. Use Form 1040X to change your filing status. taxmap/pubs/p504-000.htm#en_us_publink1000175855
After the due date of your return, you and your spouse cannot file separate returns if you previously filed a joint return. taxmap/pubs/p504-000.htm#en_us_publink1000175856
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 1 year from the due date (including extensions) of the joint return to make the change. taxmap/pubs/p504-000.htm#en_us_publink1000175857
Filing as head of household has the following advantages.
- You can claim the standard deduction even if your spouse files a separate return and itemizes deductions.
- Your standard deduction is higher than is allowed if you claim a filing status of single or married filing separately.
- Your tax rate usually will be lower than it is if you claim a filing status of single or married filing separately.
- You may be able to claim certain credits (such as the dependent care credit and the earned income credit) you cannot claim if your filing status is married filing separately.
- Income limits that reduce your child tax credit, retirement savings contributions credit, itemized deductions, and the amount you can claim for exemptions will be higher than the income limits if you claim a filing status of married filing separately.
You may be able to file as head of household if you meet all the following requirements.
- You are unmarried or "considered unmarried" on the last day of the year.
- You paid more than half the cost of keeping up a home for the year.
- A "qualifying person" lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the "qualifying person" is your dependent parent, he or she does not have to live with you. See Special rule for parent, later, under Qualifying person.
You are considered unmarried on the last day of the tax year if you meet all the following tests.
- You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.
- You paid more than half the cost of keeping up your home for the tax year.
- Your spouse did not live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences, later.
- Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Qualifying person, on this page, for rules applying to a child's birth, death, or temporary absence during the year.)
- You must be able to claim an exemption for the child. However, you meet this test if you cannot claim the exemption only because the noncustodial parent can claim the child using the rule described later in Special rule for divorced or separated parents (or parents who live apart) under Exemptions for Dependents. The general rules for claiming an exemption for a dependent are shown later in Table 3.
If you were considered married for part of the year and lived in a community property state
(one of the states listed later under Community Property
), special rules may apply in determining your income and expenses. See Publication 555
for more information.
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 another qualifying person and meet the other requirements to file as head of household.taxmap/pubs/p504-000.htm#en_us_publink1000175871
You are keeping up a home only if you pay more than half the cost of its upkeep for the year. This includes rent, mortgage interest, real estate taxes, insurance on the home, repairs, utilities, and food eaten in the home. This does not include the cost of clothing, education, medical treatment, vacations, life insurance, or transportation for any member of the household.taxmap/pubs/p504-000.htm#en_us_publink1000175872
, later, shows who can be a qualifying person. Any person not described in Table 2
is not a qualifying person.
Generally, the qualifying person must live with you for more than half of the year.taxmap/pubs/p504-000.htm#en_us_publink1000175875
Table 2. Who Is a Qualifying Person Qualifying You To File as Head of Household?1 Caution. See the text of this publication for the other requirements you must meet to claim head of household filing status.
|IF the person is your ...||AND ...||THEN that person is ...|
| ||qualifying child (such as a son, daughter, or grandchild who lived with you more than half the year and meets certain other tests)2 ||he or she is single||a qualifying person, whether or not you can claim an exemption for the person.|| |
| ||he or she is married and you can claim an exemption for him or her||a qualifying person.|| |
| ||he or she is married and you cannot claim an exemption for him or her||not a qualifying person.3 || |
| ||qualifying relative4 who is your father or mother||you can claim an exemption for him or her5 ||a qualifying person.6 || |
| ||you cannot claim an exemption for him or her||not a qualifying person.|| |
| ||qualifying relative4 other than your father or mother (such as a grandparent, brother, or sister who meets certain tests) ||he or she lived with you more than half the year, and he or she is related to you in one of the ways listed under Relatives who do not have to live with you in Publication 501 and you can claim an exemption for him or her5 ||a qualifying person.|| |
| ||he or she did not live with you more than half the year||not a qualifying person.|| |
| ||he or she is not related to you in one of the ways listed under Relatives who do not have to live with you in Publication 501 and is your qualifying relative only because he or she lived with you all year as a member of your household||not a qualifying person.|| |
| ||you cannot claim an exemption for him or her||not a qualifying person.|| |
| 1 A person cannot qualify more than one taxpayer to use the head of household filing status for the year.|
| 2 See Table 3, later, for the tests that must be met to be a qualifying child. Note. If you are a noncustodial parent, the term "qualifying child" for head of household filing status does not include a child who is your qualifying child for exemption purposes only because of the rules described under Children of Divorced or Separated Parents (or Parents Who Live Apart) under Exemptions for Dependents , later. If you are the custodial parent and those rules apply, the child is generally your qualifying child for head of household filing status even though the child is not a qualifying child for whom you can claim an exemption.|
| 3 This person is a qualifying person if the only reason you cannot claim the exemption is that you can be claimed as a dependent on someone else's return.|
| 4 See Table 3, later, for the tests that must be met to be a qualifying relative.|
| 5 If you can claim an exemption for a person only because of a multiple support agreement, that person is not a qualifying person. See Multiple Support Agreement in Publication 501.|
| 6 See Special rule for parent for an additional requirement.|
If your qualifying person is your father or mother, you may be eligible to file as head of household even if your father or mother does not live with you. However, you must be able to claim an exemption for your father or mother. Also, you must pay more than half the cost of keeping up a home that was the main home for the entire year for your father or mother. You are keeping up a main home for your father or mother if you pay more than half the cost of keeping your parent in a rest home or home for the elderly. taxmap/pubs/p504-000.htm#en_us_publink1000175885
You may be eligible to file as head of household if the individual who qualifies you for this filing status is born or dies during the year. You must have provided more than half of the cost of keeping up a home that was the individual's main home for more than half of the year, or, if less, the period during which the individual lived.taxmap/pubs/p504-000.htm#en_us_publink1000175886
You are unmarried. Your mother, for whom you can claim an exemption, lived in an apartment by herself. She died on September 2. The cost of the upkeep of her apartment for the year until her death was $6,000. You paid $4,000 and your brother paid $2,000. Your brother made no other payments towards your mother's support. Your mother had no income. Because you paid more than half of the cost of keeping up your mother's apartment from January 1 until her death, and you can claim an exemption for her, you can file as a head of household.taxmap/pubs/p504-000.htm#en_us_publink1000175887
You and your qualifying person are considered to live together even if one or both of you are temporarily absent from your home due to special circumstances such as illness, education, business, vacation, or military service. It must be reasonable to assume that the absent person will return to the home after the temporary absence. You must continue to keep up the home during the absence.taxmap/pubs/p504-000.htm#en_us_publink1000175888
You may be eligible to file as head of household, even if the child who is your qualifying person has been kidnapped. You can claim head of household filing status if all the following statements are true.
- The child must be presumed by law enforcement authorities to have been kidnapped by someone who is not a member of your family or the child's family.
- In the year of the kidnapping, the child lived with you for more than half the part of the year before the kidnapping.
- You would have qualified for head of household filing status if the child had not been kidnapped.
This treatment applies for all years until the child is returned. However, the last year this treatment can apply is the earlier of:
- The year there is a determination that the child is dead, or
- The year the child would have reached age 18.
For more information on filing as head of household, see Publication 501.