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About Dan Lively
Expertise
I can answer questions regarding personal, corporate, partnership, estate and gift taxes. These questions can relate to problems, compliance, or planning. I am well versed in IRS audit and collection procedures and can respond to questions you may have in this area as well.

Experience
I am an attorney in the state of CA that is certified as a tax specialist by the State Bar of California Board of Legal Specialization. I am also a Certified Public Accountant, and have an LL.M in Taxation. Further, I am an adjunct professor of taxation at Whittier College of Law.

Organizations
Orange County Bar Association American Bar Association Orange Coast Estate Planning Counsel American Association of Attorney/CPA's California Bar Association

Publications
Apartment Journal Taxing Advice California CPA Journal

Education/Credentials
LL.M (Taxation) - Chapman University College of Law JD (Law) - Western State University College of Law BS (Accounting) - California State University, Northridge

Awards and Honors
• American Jurisprudence Award – Federal Taxation • American Jurisprudence Award – Wills • American Jurisprudence Award – Estate Taxation • Cal Jur Award – Partnership Tax • Cal Jur Award – Corporate Tax • Cal Jur Award – Tax Procedure

You are here: Experts > Business > Corporate Law > Tax Law (Questions About Taxes) > incarcerated spouse

Tax Law (Questions About Taxes) - incarcerated spouse

Expert: Dan Lively - 11/2/2009

Question
QUESTION: Hi Dan. My question to you is:How should I file my taxes for the upcoming tax season when my husband is in jail? I'm a newlywed and unfamiliar with this change. I have changed my last name on SSC and DL. He will not be home for some time, and has no income. I understand there are greater benefits filing MFJ opposed to MFS. I do have a dependant to claim. Friends have told me to continue to file HOH since he'll be gone two mmore years. Please help me sort this out without audits or held up refund. Thank you in advance!!!

ANSWER: Sorry to hear that your husband is incarcerated. When you are married you only have two choices in filing. You either have to file married filing separately, or married filing jointly. Head of household status is no longer available once you are married. You are right, married filing jointly typically has greater benefits, but not always. It is usually a good idea to calculate your taxes both ways and take the one that gives you the best result (MFS v MFJ). If you have your taxes prepared by a professional, this is usually just a click of a button. The only problem with MFJ is that your husband will have to sign the return. If this is not possible, your only choice is MFS. Best of luck, and I hope your husband gets out soon.

---------- FOLLOW-UP ----------

QUESTION: Is it true that the IRS does not recognize marriages when the spouse is incarcerated? I was told by an IRS agent that if my husband did not live with me 6months out of the year we were considered separated, even though we are married. Is it possible for me to claim my husband as a dependant?

Answer
Your spouse has to live with you at least six months or you are considered separated for tax purposes. The above answer applies if he was incarcerated less than six months. If your spouse didn't live with you at least six months for the year, you would be able to file as single. If you have a qualifying dependent, you will be able to claim as Head of Household. You will not be able to claim your husband as a dependent. You would need to provide more than half of his support for the year to be able to do this. The State is providing food, clothing, and housing so this will not be possible.

From your facts, it sounds like you can claim head of household, and you will claim yourself and your qualifying child, but not your husband. This should give you the best tax result possible. Let me know if you have any follow up questions.

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