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Married, not living together, want to file separately, but need the Opportunity Credit for my education expenses

Berkeley, CA |
Filed under: Divorce

I can't locate my husband, we haven't been talking much lately. and now he's not responding to my messages, emails, calls. I'm a student, and paid $3,000 for my tuition on Dec 26, 2011 and would like to deduct it or receive the Opportunity Credit.
Turbotax informed me I wasn't eligible as I was filing married but separately.
Well, what can I do if my husband lives 600 miles away, and is not responding?
We agreed to file for divorce this coming March, but I need to file before then in order to get financial aid for the next school year.

Any relevant advice would be appreciated.

Thank you!

We haven't lived together for over a year actually. And it can be legally proven - he's permanently in San Diego (military), and I have been in school in Los Angeles, then Berkeley. Turbotax says I have to file married if I"m still legally married, or even if I didn't live with my husband. I'd rather file as single, of course. Where can I find the law that tell me I can file as single if we haven't lived together for 6 months? Thank you so much for your answer!

Attorney Answers 3


  1. Since you are married you have two choices for filing - Either married filing separately or married filing jointly. Unfortunately, to file jointly he will have to agree and also sign the return. Another option is if you have not lived together for six months you can file as single. It is not clear from the facts whether this is true.

    Any individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.


  2. If you did not live together for the last six months of the year, AND you have a child that you take care of, you are not considered married under Section 7703. If you do not have a child that you take care of, you will be considered married unless you are legally seperated. Married filing seperately is very unfavorable for both taxpayers, but there appears to be no way around it. If you seek legal seperation or divorce, you will be able to file again as single.

    Christopher Larson
    Insight Law
    www.insightlawfirm.com


  3. You must also have a child. but if you have a child, the basis for claiming Single(Actually Head of Household), is Section 7703(b).

    Christopher Larson
    Insight Law
    www.insightlawfirm.com

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