Divorce from Bed & Board (N.J.S.A. 2A:34-3) — federal income tax Filing Status:

Clients should check with their accountant as to tax issues, but, I understand that a person may NOT file as “Married filing separately” if that person has a limited divorce; i.e., a divorce from bed & board; although the divorced (from bed & board) parties remain linked for social security purposes, they are separate for federal income tax purposes.

IRC 6013 operative language for filing single:

….(d)(2) an individual who is legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married;

1. According to the Tax Court, an individual is considered legally separated under a decree if the decree “expressly and affirmatively provides that the parties live apart in the future.” Capodanno v. Comr., 69 T.C. 638 (1978), aff’d, 602 F.2d 64 (3d Cir. 1979) (quoting Boettiger v. Comr., 31 T.C. 477 (1958), acq., 1959-1 C.B. 3). A decree of support or temporary alimony alone, with no accompanying requirement of separation, is not considered a decree of divorce or separate maintenance within the meaning of §7703(a)(2). A voluntary separation under a voluntary separation agreement does not constitute legal separation for purposes of §7703(a)(2).

2. Since a preliminary court order issuing support does not constitute a decree of separate maintenance, the taxpayer could not file as a single taxpayer. Freyre v. U.S., No. 03-2099 Ma/A (W.D. Tenn. 1/29/04).

3. Head of household under certain circumstances – live separate plus a child – A married taxpayer will be considered unmarried and eligible for head of household status if the taxpayer’s spouse was not a member of the household for the last six months of the year and if the household is the principal place of abode of a child for whom the taxpayer is entitled to a dependency exemption.

SOURCE: Little known tax issues, by Michael D. Daniels, CPA, Esq.

This issue was highlighted for me by David Perry Davis, Esq. and Lois S. Fried, CPA.

See related Blog Post: For federal income tax purposes, parties who enter into a divorce from bed and board are “unmarried”.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.