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amanda-vannBy:  Amanda Vann, Esq.

When tax season comes around and you are separated from your spouse, you may have some questions regarding how to file your taxes. Do you still file married? Can you file married but separate?

You actually have the option of filing a joint return (married) or a separate return (married filing separate).

Filing a Joint Return

If a joint return is filed, both spouses are held jointly and severally liable for any taxes and penalties due and owe for the taxable year for which a joint return is filed. Therefore, you can be held liable for the entire tax due, even though not all of the income was earned by you. The IRS isn’t concerned with which spouse pays the tax, only that it is paid.

Filing a Separate Return

You also have the option to file a separate return (married filing separate). Filing a separate tax return means you are only liable for any tax and penalty due and only owe with regard to your separate income.

If you have a Marital Separation Agreement, you should have a clause that addresses how you and your spouse will file your taxes during the time when you are separated but not yet divorced. The agreement can also address which parent can claim any children, whom will claim the mortgage interest, and any other claims you may have that you may have both contributed to.

If you can’t come to an agreement on how to file your taxes during this time, you should seek legal counsel that can advise you on:

  • the impact not filing a return will have on you; and
  • how to seek an extension with the IRS to allow you and your spouse to reach an agreement or for the court to decide for you.

Before filing any taxes, we recommend you consult with your tax preparer so that they can confirm what filing status will be the most beneficial to you. And if you’re interested in working out an agreement that resolves how you and your spouse will file taxes or have legal questions regarding how to file your taxes while separated, please contact me at 301-244-4524 or email me at