When taxpayers are in the process they often wonder which filing status they should use. Since the spouses are often not getting along they don’t want to use the Married Filing Jointly (MFJ) filing status and using the Married Filing Separately (MFS) filing status keeps a taxpayer from being able to claim the Earned Income Credit and has other negative tax consequences. Many taxpayers see in their tax software or in the tax instructions that if they are legally separated that they can use the single filing status. Based on my experience, my guess is that most people that use the single filing status while still married are not actually eligible to do so. Even many experienced tax pros make the mistake of allowing married clients use the single filing status when they are not eligible to do so.
In order to file single before your divorce is final you must be legally separated under a final decree of divorce or separate maintenance rather than an interlocutory decree. Most people are only separated under a temporary decree before getting divorced and therefore are not eligible to use the single filing status. A permanent decree of separate maintenance is mainly used by those whose religion doesn’t allow divorce. The couple in a permanent separation does not plan to divorce, they just plan to live separately. Even though the taxpayers are not eligible to use the single filing status most of them are able to do so without the IRS realizing they are using the wrong filing status. If the IRS does realize they are using the wrong filing status though it could lead to a lot of headaches and potentially cost the taxpayer a lot of money. If you are not divorced or legally separated under a permanent decree of divorce or separate maintenance on the last day of the tax year then you must use the MFJ or MFS filing status. Actually, there is an exception that allows a taxpayer with a qualifying person to use the Head of Household filing status, but that exception deserves an article of its own.