Yes, you can.
Your filing status is determined in large part by your marital status on the last day of the year. Generally, if you are legally married on December 31st, you are considered married for the whole year for tax purposes. However, there is an important exception for couples who are separated.
Married Filing Separately vs. Head of Household
Separated couples have two options when it comes to their filing status. If the couples are separated, but their divorce is not yet final, then they have to choose between filing a joint return or a separate return. Generally speaking, I advise such couples to file separate returns.
However, some people are entitled to file as Head of Household. According to IRS Publication 504, you can file as head of household if you meet three criteria:
- You are "considered unmarried,"
- You paid more than half the cost of keeping up a home for the year, and
- A "qualifying person" (usually a dependent) lived with you for more than half the year.
Considered Unmarried
In order to be considered unmarried, the separated couples must have lived apart from each other for the last six months of the year (or more). There's acutally five criteria for being "considered unmarried" by the IRS.
- You file a separate tax return.
- You paid more than half the cost of keeping up your home.
- Your spouse did not live with you during the last six months of the year.
- Your home was the main home of your child.
- You can claim at least one child as a dependent.
Qualifying Person
A qualifying person is a child, stepchild, adopted child, or foster child whom you can claim as a dependent. You will need to review the new rules for claiming a dependent to determine if you qualify to claim your child.
There's an important exception to the dependent criteria. If you have a court-approved agreement that gives the non-custodial parent the right to claim the child as a dependent, then you (the custodial parent) could still file as Head of Household.
Essential Resources:
- IRS Publication 504, Tax Guide for Divorced and Separated Individuals
- IRS Publication 501, Exemptions, Standard Deduction, and Filing Status Information
Throughout the tax season I will be answering one tax question per day. Do you have a question? Visit the Ask a Tax Question page. Disagree with my answers? Post your comments in the Tax Forum.
regarding “considered unmarried” for IRS purposes, I have read that when separated you can live on different floors with separate amenities for the convenience of the kids (them not having to shuttle between homes. I meet all of the 5 criteria described, since I have one dependent child that only I will claim an exemption for. In this case is it possible for me to file as head of household while their dad files as separate/unmarried. Also can I take a standard deduction if he itemizes his return. pls clarify
Can I file head of the household if my fiance lived with me for the more than half the year and I covered more than 50% of the household fiances? would my fiance be considered as a qualifying person for my head of the household status?
Jeanette – did you ever find that answer out if you can claim hoh when fiance lives with you even full year – but you pay 50% of 100% of household costs and bills? Pls let me know if you found out! thanks
A fiance is not a qualifying person for head of household purposes. However, once you are married, you and your new spouse will be able to file a joint return, which generally offers better tax breaks than the head of household status.
My husband has been a stay at home dad since the end of April. what would be best for us to claim? Should I claim head of household since it’s just my income? Can I claim him at the end of the year along with our 2 kids?
Tammy, the best filing status for you is married filing jointly. That provides you with a bigger standard deduction and more personal exemptions than if you claimed head of household. Besides, the head of household status is not available to married couples, unless you are separated.
can I file head of household if my domestic partner (unmarried) was out of work for most of the year?
Greg, you could potentially file for head of household, but you will need a ‘qualifying person.’ I spell out all the various types of relationships that would qualify in my article on the head of household filing status. Domestic partners are not qualifying persons. However if you have another dependent, that other dependent could qualify you for HOH. Otherwise, you might be able to file as single and claim your partner as a dependent. But your partner would have to make less than $3,500 (the personal exemption amount for 2008) in order to make this doable.
So being married automatically disqualifies you to be HOH? If I do not want my refund taken along with my husband’s for withholding then my only choice is to file separately and lose credits for my 2 daughters?
Melissa, it’s a bit unclear what your situation is. But generally speaking, yes, being married precludes you for qualifying for HOH. The exception is for estranged spouses who have lived apart for at least the last six months of last year.
It sounds to me like your husband owes some sort of debt such as back taxes or child support or student loans, and that his tax refunds will be confiscated to pay off his other debts. If that’s the case, there are two possible solutions for you. (1) you can file separately. This will likely increase your taxes significantly as separate filers are not eligible for a wide range of tax deductions and tax credits. Or (2) you can file jointly and add the Injured Spouse form 8379. By using the form, you’ll let the IRS know to confiscate only his portion of the tax refund to pay off his other debts and to issue your refund to you.
I was divorced in nov but moved out of the house in august. So I maintained a home solely for 5 months. During this time my son lived with me and I will be claiming him as my dependant per my divorce decree. My question is about the first 7 months of the year. Since i was married during this time and marrital assets are joint can i safely say that I was 50% responsible for household expenses for 7 months and 100% for 5 months and qualify for the HOH status? By the way my ex will claim our daughter (who lives with him) so would we both get to file as head of household?
I have a question.If i own my home, and my daughter,her boyfriend and their son live in my house,can he and i both claim head of household? what are the legal guidelines? anyone know?
Not a comment but a question. I am divorced and single. My ex-wife has custody of our daughter and she claims her as a dependent. I pay alimony and have an extra room in my house for my daughter’s bi-weekly visits. Can I file as ‘Head Of Househlod’ and not claim my daughter as dependent?
What if neither parent has custody of the kids and they spend more time with me, their father but they sleep at their mother’s house because I work third shift?
I was divorced October 31 2008. We were to file taxes together this yr. My ex filed without me and he took all the credit for the home we owed. I have no children who live with me. Being that we lived apart (my ex and I most of 2008 and I did pay 50 percent of our expenses. Can I still claim head of household?
I got married at the end of June in 2008. My husband and I have a prenup agreement. My assets and ebt are mine and vice versa. I own the house in which we live and he is retired. We both have disabled adult children which we are the sole support of. Since we were single the first six months of the year can we still file as head of household and claim our chilren? We donot pool our assets, he still own his own home and I have a residence that I am selling and own the current house we live in. How should we file?
So, here’s one that I can’t figure out… My boyfriend and I own a house and have a daughter together. He claims the house and I claim her for tax purposes since we file separately. He makes more money, and therefore pays more for keeping the house up. Does he file HOH even though he doesn’t claim her as a dependant??
Sara, your boyfriend would need to claim his daughter as a dependent if he wants to file as head of household.
Lynn, since you are now divorced, the both of you can file as Head of Household, provided that the dependent lived with you for more than half the year and you each provided more than half the support for each dependent, respectively. From what you described, it sounds likely that you’ll both qualify for HOH.
Nicki, here’s a link to the basic guidelines for Head of Household status. There’s more details in Publication 501 from the IRS web site. Generally speaking, you need to be able to claim a closely-related dependent on your tax return, and that dependent must live with you for more than half the year and you must provide more than half their support. There can be at most one HOH filer per household. Whether anyone in your household qualifies for HOH depends whether they can claim dependents and how much of the household support they provided.
I have been seperated for over a year. It wasn’t done with a lawyer. He moved out into an apartment and I stayed at the home I purchased before we got married. I paid for all the household necessities(mortgage,daycare,dependants,etc.). Can I file head of household without penalty or do I have to file seperate? He can’t itemize because he doesn’t have much to use a 1040A form.
Can two adults claim HOH if you both have agreed to 50/50% split of time and expenses?
We both want to claim HOH but are not officially divorced but essentially pass all tests for being legally separated.
Thanks,
Adam
I am planning to get married after June this year. I still own my own home and have a dependent that lived with me. Next year, can I file head of household for 2009?
I have a question…my boyfriend is legally separated with divorce pending. His ex lives in the marital residence and he is renting a house. If his children live a little less than 50% of time time with him but he pays ALL expenses at the marital home as well as giving her a food/gas allowance until the court decides support agreement, is he able to claim them on taxes or does she?
If my husband and I were married overseas in Japan but both of us are citizens. Now can my husband claim head of household are we able to legally count our marriage? We have 2 common children together and he was advised by his tax preparer that he can claim HOH because I am disabled and tecniquillt we aren’t legally married in this country.
I’ve been in working visa for 2 years, my husband can’t work and just take care of our son at home. I am paying everything ,but I know I am not qualified to file for head of household. What is the best should I file for? thank you
I have a niece who has one chlid and rents a roomin a nonrelatives house pays rent and provides food for herself and child and she is 17 years old can she file headhousehold?
My wife is the only one working in our family. We sold our home last year and moved into an apartment. I have not had a job for over a year. she pays for everything and I take care of the cleaning meals and stuff for now. I cashed out my retirement funds last year and sent 20 percent to gov. Will I get back any do you think and is it best to file jointly? Thanks john
Can I claim a domestic partner on my taxes? She does not work at all and I pay for everything. We co own a home, I have not registered us offcially as domestic partners in the state of WA, would I need to do that first? We have been together 14 years and she just quit work this Oct due to health reasons.
If I have been seperated and leaving apart from my husband for over a year, if he files married but seperated, can I file head of household? (we have a toddler together and I have sole custody)
i have been separated from my wife for about six months now, we have 3 qualifying children in common… we’re planning to claim them three as dependents (2 by her and 1 by me) can we both file as Head Of House Hold since we lived in different houses and paid more than 50 percent of support for our qualifying kids..
My x-husband and I are divorced several years ago. We have two kids together. Each of us claim one child as a dependent. In the past, I always filed my tax return as a single with one dependent. This year I was wondering if I can file as head of household. Since both of our kids are going back and forth. We have joint custody of both kids.
My elderly mother moved in with me in July 2007. All she had was her SS to live off of and a part of that went to pay for her Medicare and medications. She provided me with a very limited amount of oney each month to assist with groceries and bills. I paid the majority of bills and groceries, including mortgage payments. My mom passed away in Nov of 09. Can I file as Head of Household for her or is there any other way to claim a dependent parent as I was her sole care giver 24/7 for most of those 2+ years.
My boyfriend and I own a home together and this will be our first year being able to claim the house on taxes…now the question is since we are not married and file seperately is there a way we can both claim a piece of the house, like 50/50? Thanks for anyones help!!!
My husband had his taxes confiscated last year due to HIS school loans. I was very upset as it was a surprise to me, I was expecting to have monies. Needless to say, I was disgusted at my husband for not taking care of his business. Can I file head of household or separately this year and claim him without being penalized MY portion of the return? He did NOT work all year and got his disability papers and qualified to work zero hours. I got disability papers and qualified to work zero hours also. i am also a 3/4 time student (9 credit semesters) who gets FAFSA grants and was on welfare (cash and food stamps) ALL year. and we have 3 kids, one living in a facility (Acadia health care) who was remanded there at the end of August. I made under 5000$ under the table (odd jobs) all year. and my husband got his plasterers union retirement, which we spent all on building materials and everyday living (we stopped turning in welfare papers when we got the check, figuring we would no longer qualify). Can I file, what do i file, can i claim him and will i even get anything back?
My wife and I seperated at the end of Oct. 2009 and received our signed paperwork about mid-way through Dec. 2009.
There are no legal bindings for claiming my son. We have made an agreement though to alternate years for claiming him.
My question though is even though I’m not “claiming him as a dependant” this year can I still file head of household since they lived with me for the majority of the year?
Please read over my suggestions for sharing the child-related tax breaks.
My boyfriend and I split up and our 3 kids live with me in the home my ex and I have together. He doesn’t live here anymore but he will use this address when he files his taxes. I’d like to claim HOH and sign over two of the kids for him to use on his taxes as dependents. Will the IRS have a problem with this situation?
If my friend was married on June 1,2008. Could she file Head of Household on her 2008/2009.
I got married & moved in with my husband 10-11-09 I left him 12-29-09. I have a full custody of my daughter (not his), and prior to Oct 11th I was single and rented my own place. Can I still file Head of Household since I wasn’t living with my husband the last 6 months of the year (was gone before the last day of the year), and I had my own place for the majority of the year where I paid all the bills, and even while living with him I paid part of the bills?
I been married 3yrs we separated dec 31,09 but he was still living in the home. I have a son who is not his who is 20 living at home. now he did his taxes filed HOH he moved out jan31,2010. now he claimed me and my son on his taxes am I still entitled to something from the taxes? a friend owed him 200 told them to give it to me that money was from last year. so he wouldnt have to give me anything out of this years taxes. can he do that claim me and my son and not give anything for this year?
i got married in august. i was the single mother of an 8 year old. i always filed single, head of household. my new husband is NOT my daughters father so can i still file single HOH??? and he can file separately or do we need to file together and claim her together even though hes not her father???
if you have 2 seperate family living in 1 house, can each of the single parents claim as head of house hold ?
I have a question about filing separately & HOH.
My boyfriend & I live together with our 2 children all year long and we pay rent. He owns a home that his mother lives in. IRS says that to file HOH:
“In certain circumstances, you do not need to claim the child as a dependent to qualify for head of household filing status, such as when the qualifying child is unmarried and is your child, grandchild, stepchild, or adopted child.”
My question is can he still file HOH but I claim our kids on my taxes (single filing)? Also can he use the address of the home he owns when filing his taxes?
Update: I called the IRS & was told he can file HOH while I claim the children as my dependants on my taxes.
my parents got seperated long time ago, i’m a full time employee, living with my mom. my borther is a full time student, and living with mom too. my dad came to the US in Nov. 2009, is there a way that i can claim him as my dependant? how about next year?
thank you.
My husband and I were seperated for 10 months out of last year. We recently got back together however it would be beneficial for us to file seperate and him to claim HOH with our two children. Am I risking getting audited by the irs if we file using the same address?
If I file single, HOH w/ my 4 children as dependents, will I still receive the avg. refund per dependent at the end of the year?
My wife and I are divorcing and I make significantly more than my wife. Is it best for me to claim the children as dependants and and claim HOH? This way she gets far more back in the way of child support and spousal support?? We just want to work it out so it’s the best for both of us. If I file as a single person, she gets far less since it is a straight percentage after taxes.
I have recently gone in default with my federal student loan. Would it be better to file married filing jointly or married filing seperatley. We really can use our tax return and I was wondering what would be the best way to file.
Can I file HOH if my husband and I live in separate houses in different towns? We are still legally married but only on paper, otherwise, we only see each others for a couple of hours once a week for the kids. I have two and my college child stays with him. What can I do?
My husband and I have been married since 2008, he is the only one working and has been filing HOH while being married. Would he be audited if he now files married?
My husbands original divorce decree states he claims oldest son and ex wife claims youngest son on taxes. Well now the two kids live with us and my husband is the primary custodial parent with our house being their residence. Are we entitled to claim both children now? She pays no child support, insurance or anything. She gets them every other weekend.
If I use to file my taxes with my ex common law married but now separated now for three years and I have been living alone with my three kids now for three years and havent worked for over a year could I file my taxes and claim my kids without filing taxes with my ex,and if so will I receive any refund for my kids if I havent worked all year??
If I paid for 70% of the home costs, could I claim Head of Household by claiming my domestic partner as a dependent?
Domestic partners do not qualify a person for head of household status.
I already claim my kids.. Now my ex is trying to claim them…in we live in the same house. But we are not together…now he is telling I have to give,the money back.. What can I do..
Star88, have a look at my article on resolving disputes over dependents.
Hi, I have been told different things by different tax professionals and am very confused. I am legally married to a non-resident alien. I am a citizen. We have two children. According to one tax preparer i should file head of household or separately in order to get the earned income credit. Another says i am not eligible for eic, the only reason being that i am married to a non-resident alien and that legally if I’m married I must file jointly. Should i file jointly, head of household or separately? What are the rules?
my husband and I are seperated, I moved out and got an apartment with my son feb 2012… we have lived together and filed jointly for the last 3 years…
When filing for our 2011 tax return, can we not file separately? or since we lived together all of 2011 do we have to continue to file together?
my husband and I are seperated, I moved out and got an apartment with my son feb 2012… we have lived together and filed jointly for the last 3 years…
When filing for our 2011 tax return, can we not file separately? or since we lived together all of 2011 do we have to continue to file together?
You do not have to file jointly. You may file separately or jointly, and that decision can be made afresh for each tax year.
My husband moved out of our house in June of 2011, and got an apartment. We have 2 children that resided in my house all of 2011, and I paid all home expenses alone from June 2011 on. We were officially separated in August of 2011. As part of our divorce proposal, I am asking for it to be agreed upon that I am able to file without a marriage status, and as head of household for 2011. also, a part of our proposal is for me to be able to claim both kids and the house for 2011, and all years going forward – in exchange for a decrease in child support. My lawyer has suggested I file for an extension since this will not be finalized prior to the tax deadline. My question is for estimating the amount of taxes I owe on form 4868 – should I estimate it as head of household and able to claim the kids as well as the house, or should I estimate it as married claiming only one child and half of the taxes paid on our house?
My husband and I live in the home I purchased prior to our marriage with my daughter ( his step child). His ex-wife lives in their marital home with their 3 children and will for at least another 2 years due to the divorce . The house is in his name and he pays the mortgage as part of child support. He is not entitled to claim any of his children. And still pays her an additional amount monthly. Due to her income he pays more than half of the child care expenses. He also pays medical insurance as well. What is the best way for each of us as a married couple to calculate our deductions and withholdings ? Considering the following ; I make@ $60k a yr and solely own our home and have 1 child dependant and he makes @$110k a yr and owns his (ex) marital home can’t claim any child defendants , oh and he and is ex agreed and had been alternating claiming the children during the marriage but the final year prior to the divorce she claimed them causing him to owe because it was his year to claim them but she filed first. (He based his withholdings off of what was agreed )
My wife and I live in separate states and maintain separate households because of our jobs. No children or dependants involved. What would you suggest as the best filing for us to minimize tax liability. Thx – Ken
I only lived with my husband 4 months out of the past year..August to the beginning of December…he did not work or pay any expenses….can I claim head of household?
It sounds like a lot of people need help with this tax issue. I recommend that you find a good CPA to guide you. I am in East TN, but we help lots of clients from all over. Look me up if you need some help.
Dan Bragg, CPA
Johnson City, TN