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Filing N400 base on 5 yrs rule (Married but separate)

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Hello everyone!

I'm planning on filling n400 application next month under 5 year rule.. I am married But separated(not legally).Got my Conditional status last 2011 and my 10yrs GC in 2013. we separated after i got my removal of conditions of my Status. Our relationship didn't work out well. I have paid my taxes all the past years. However, since we separated. our tax preparer has used " single" and not married filing separately.... Will that affect my naturalization?? 

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Hi Dear,

 

As a Legal researcher, and based on the question asked, whether it will affect your naturalization process is important. In the N-400's application, there's a section that requires an applicant to give details of marital history. Henceforth, you're not divorced or legally separated per your assertions. In this vain, and under the eyes of IRS or the Law you're still married. 

Legal separation is a court-decreed right to live apart, with the rights and obligations of divorced persons, but without divorce. The parties are still married and cannot remarry. A spouse may petition for a legal separation usually on the same basis as for a divorce,and include requests for child custody, alimony, child support and division of property. For people who want to avoid the supposed stigma of divorce, who hold strong religious objections to divorce, or hope to save a marriage, legal separation isan apparent solution. With more states allowing no-fault divorce, the use of separation agreements, and informal separation, legal separation is rarely used.

Within USCIS’ N-400 application (the section that talks about evidence required states)

D. Tax Returns and Overdue Taxes. Bring photocopies of income tax returns that you filed with the IRS for the past 5 years, or 3 years if filing for naturalization based on marriage to a U.S. citizen. Tax returns are not required for every case. However, USCIS strongly encourages you to bring your tax returns; especially if you are filing based on marriage to a U.S. citizen or have traveled outside the United States for a period that lasted 6 months or more.

Howbeit, if your marriage was legally terminated or dissolved then I can say the filling status “single” is not an issue, because IRS has a policy on this topic. According to IRS’s filling statuses, particularly to your situation it says “…Married persons living apart.   If you live apart from your spouse and meet certain tests, you may be able to file as head of household (single) even if you aren't divorced or legally separated. If you qualify to file as head of household instead of married filing separately, your standard deduction will be higher. Also, your tax may be lower, and you may be able to claim the earned income credit.

The question is doing your filling periods did you meet IRS’s filling single test? If yes, then we have no issue here and you will be good with USCIS too. Let me know if you have any question my friend.

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55 minutes ago, chars said:

Hi Dear,

 

 

 

As a Legal researcher, and based on the question asked, whether it will affect your naturalization process is important. In the N-400's application, there's a section that requires an applicant to give details of marital history. Henceforth, you're not divorced or legally separated per your assertions. In this vain, and under the eyes of IRS or the Law you're still married. 

 

Legal separation is a court-decreed right to live apart, with the rights and obligations of divorced persons, but without divorce. The parties are still married and cannot remarry. A spouse may petition for a legal separation usually on the same basis as for a divorce,and include requests for child custody, alimony, child support and division of property. For people who want to avoid the supposed stigma of divorce, who hold strong religious objections to divorce, or hope to save a marriage, legal separation isan apparent solution. With more states allowing no-fault divorce, the use of separation agreements, and informal separation, legal separation is rarely used.

 

Within USCIS’ N-400 application (the section that talks about evidence required states)

 

D. Tax Returns and Overdue Taxes. Bring photocopies of income tax returns that you filed with the IRS for the past 5 years, or 3 years if filing for naturalization based on marriage to a U.S. citizen. Tax returns are not required for every case. However, USCIS strongly encourages you to bring your tax returns; especially if you are filing based on marriage to a U.S. citizen or have traveled outside the United States for a period that lasted 6 months or more.

 

Howbeit, if your marriage was legally terminated or dissolved then I can say the filling status “single” is not an issue, because IRS has a policy on this topic. According to IRS’s filling statuses, particularly to your situation it says “…Married persons living apart.   If you live apart from your spouse and meet certain tests, you may be able to file as head of household (single) even if you aren't divorced or legally separated. If you qualify to file as head of household instead of married filing separately, your standard deduction will be higher. Also, your tax may be lower, and you may be able to claim the earned income credit.

 

The question is doing your filling periods did you meet IRS’s filling single test? If yes, then we have no issue here and you will be good with USCIS too. Let me know if you have any question my friend.

 

Thank you for your response.. I'm going to file for amendment for my taxes from 2013-2015.. Do you think that would help? 

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I would assumed under the 5 year rule, marital status will not matter, it is only for the 3 year rule. So you could mark as single or married, they will not asked for evidence on that. You can bring your tax returns, though I read some will not even ask for that either. Just bring your GC, driver license, passport (if any), and two passport photos. 

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