My wife and I have been separated for 3+ years, living in two separate homes, and we filed for divorce last year (not yet finalized). We have two children and each of us claims one child on our separate tax returns. In addition, both of us filed with the HoH status. Unfortunately, I am now being audited by IRS regarding my HoH filing status. My attorney informed me that even though we both satisfy all the criteria of HoH, only one of us can be HoH. The other one must be married filing separately status. Is my attorney correct? Thank you very much for your time and help.
I believe that your attorney is only partially correct. In certain cases, both separated spouses may claim Head of Household filing status (just as they would be able to do so after dissolution, as single persons). As you probably know, “Head of Household” filing status will typically result in a lower tax bill than filing as Single or, if you are not yet divorced, Married Filing Separately.
Generally, the Head of Household filing status is determined by your custody arrangement. The parent who has the children more than one-half of the year can claim the Head of Household filing status. The only way that both parents can claim Head of Household is if they have more than one child and each parent has at least one different child living with them for more than one-half of the year.
People sometimes mistakenly believe that claiming a child as a dependent entitles them to file as Head of Household. This is not necessarily true. To qualify as Head of Household you must meet the following requirements:
• You must maintain a household for your child (even if you do not claim them as a dependent)
• You must be unmarried at the end of the year or living apart from your spouse for more than six months
• The household must be your home and generally must also be the main home of the qualifying dependent (i.e. they live there more than half the year)
• You must provide more than half the cost of maintaining the household
• You must be a U.S. citizen or resident alien for the entire tax year
You do not need to claim a dependent to file as Head of Household. This means that even if you allow your ex-spouse to claim your child as a dependent, you can still file as Head of Household.
If you can claim Head of Household you may also qualify for the Dependent Care Credit, the Earned Income Tax Credit (for lower income people), as well as other rebates that may be available for that tax year.
You may also wish to consult the following link:
The answer to this question does not establish an attorney-client relationship. Moreover, this attorney is licensed to practiced law ONLY in the State of California. Answers to questions from users in other jurisdictions or states are meant to provide only general information. Users should contact a local attorney in their jurisdiction or state to address their specific tax issue.
1 lawyer agrees