Married Filing Separately

[danver 15]

Hello,

Happy New Year everyone. I have a question. I am married to a Us citzen for 5 yrs now and i would like to apply for naturalization next month.

my questions are:

1. Me and hubby agreed that we file as married but will file our income tax separately(for the first time). Is that okay and won't cause a red flag for N-400 application?

2.Also if i apply for citizensip do i also have to pay separate fee for my 3 kids?And also 3 separate applications?

Thanks.

[HikerMark 5]

I can only comment on the tax.

If you have been filing jointly for the previous years why are you thinking about married filing separately this year?

Usually married separately is bad news particularly if you are claiming kids as dependents as you will owe more tax filing that way.

You need to work out the tax both ways, married filing joint and married filing separate to see which one gives you the best tax position.

[rin and john 71]

I can only comment on the tax.

If you have been filing jointly for the previous years why are you thinking about married filing separately this year?

Usually married separately is bad news particularly if you are claiming kids as dependents as you will owe more tax filing that way.

You need to work out the tax both ways, married filing joint and married filing separate to see which one gives you the best tax position.

Based on a different thread the OP started, I believe it is an issue of her husband owing back child support. If they file a joint return, the government may keep any return to pay his support to his ex.

Since the OP shows a status of naturalization pending, I would think she should be a citizen before the 2011 filing deadline. Therefore they should be able to submit returns for TY 2008-2010 and not even show USCIS the return for TY 2011.

[aaron2020 11,651]

Hello,

Happy New Year everyone. I have a question. I am married to a Us citzen for 5 yrs now and i would like to apply for naturalization next month.

my questions are:

1. Me and hubby agreed that we file as married but will file our income tax separately(for the first time). Is that okay and won't cause a red flag for N-400 application?

No. Lots of people file married filing separately for various reasons - taxes, benefits, bankruptcy, personal, etc. You are filing based on the 5 years rule and not the 3 years as the LPR spouse of a US citizen. Just have a good reason why you filed separately in case the IO asks. As long as it's reasonable, no one will care.

2.Also if i apply for citizensip do i also have to pay separate fee for my 3 kids?And also 3 separate applications?

If the children are under age 18 when you take the oath and they are living with you as LPRs, then they automatically become US citizens based on the Child Citizenship Act of 2000. There is no need for fees or applications. They are not naturalizing. They will derive US citizenship from a US citizen parent.

If a child is 18 or older when you take the oath of citizenship, then the child must file on his/her own as an adult. Separate fee and separate naturalization application.

Thanks.

[Darnell 8,478]

2. Yes.Yes. [you not think this stuff was free, right?] Actually - the children may get 'auto converted' without fees, without paperwork, other than a USA Passport application being filed - is all dependent on their age.

Good Luck !

Edited January 11, 2012 by Darnell

[HikerMark 5]

Based on a different thread the OP started, I believe it is an issue of her husband owing back child support. If they file a joint return, the government may keep any return to pay his support to his ex.

In that case they could still file jointly and submit an injured spouse claim. That would enable part of the refund to go to the spouse who didn't owe anything to the government. The split won't necessarily be 50:50 and in many cases the greater majority of the refund goes to that spouse. The downside is that it will take 6 to 9 months to get the refund.

As I mentioned before they should work the taxes both ways (joint or separate) to see which one gives them the best refund and if joint is better submit the injured spouse claim.

Edited January 13, 2012 by HikerMark

[danver 15]

Based on a different thread the OP started, I believe it is an issue of her husband owing back child support. If they file a joint return, the government may keep any return to pay his support to his ex.

Since the OP shows a status of naturalization pending, I would think she should be a citizen before the 2011 filing deadline. Therefore they should be able to submit returns for TY 2008-2010 and not even show USCIS the return for TY 2011.

Yes we filed our income tax as joint since our marriage and i am filing my citizenship based on a 3 yr. married to a USC not the 5 yr. residency. So if i submit my N-400 application i can submit our 2008-2010 tax returns right?

My hubby owes back child support being unemployed for a couple years now reason why i wanna file separately so the ex won't get half of the refund thay i myself is paying the taxes coz hubby is not working.

[Darnell 8,478]

then it makes sense to file seperately, 'married filing seperately'

The courts won't allocate your refund amount because of your husband

and

USCIS is cool with 'married filing seperately' ..

Good Luck !

[rin and john 71]

You should be fine with tax transcripts from 2008-2010 (2011 won't even be available until later in the year, july at the earliest).

Regarding the taxes, you should consider form 8379 (injured spouse allocation). By filing form 8379 along with your 1040, the IRS determines what you would have received if filing separately and sends it to you. They send anything over that to your spouses ex towards child support. You lose nothing and you husband benefits in that it reduces his outstanding back support. At least that is how it has been explained to me. Worth looking into further if it doesn't cost you anything and his debt is lowered (otherwise Uncle Sam keeps the extra between MFS and MFJ and his back support remains unchanged).

If last year you filed MFJ and they kept any return to pay his back support, you can file a 8379 for past years, as well.

http://www.irs.gov/pub/irs-pdf/i8379.pdf

http://www.irs.gov/pub/irs-pdf/f8379.pdf

[danver 15]

You should be fine with tax transcripts from 2008-2010 (2011 won't even be available until later in the year, july at the earliest).

Regarding the taxes, you should consider form 8379 (injured spouse allocation). By filing form 8379 along with your 1040, the IRS determines what you would have received if filing separately and sends it to you. They send anything over that to your spouses ex towards child support. You lose nothing and you husband benefits in that it reduces his outstanding back support. At least that is how it has been explained to me. Worth looking into further if it doesn't cost you anything and his debt is lowered (otherwise Uncle Sam keeps the extra between MFS and MFJ and his back support remains unchanged).

If last year you filed MFJ and they kept any return to pay his back support, you can file a 8379 for past years, as well.

http://www.irs.gov/pub/irs-pdf/i8379.pdf

http://www.irs.gov/pub/irs-pdf/f8379.pdf

thanks for the info. I do appreciate it.

[rin and john 71]

Here's the IRS manual on injured spouse. Sample calculations are near the end.

http://www.irs.gov/irm/part25/irm_25-018-005.html

Looking at their examples, you'd probably be better off filing separately as your income and withholding would be considered to be half yours and half your spouses. But worth calculating both ways.

[rin and john 71]

This section of the link posted above seems to indicate the IRS can still take his portion of your return even if you file separately.

25.18.5.12 (02-15-2005)

Offsets Without a Joint Return

1. The Service may legally offset a spouse's overpayment to satisfy an unpaid tax liability of the other spouse, even though the overpayment was reported on a separate return. Eaves v. United States, 433 F.2d 1296 (10th Cir. 1970). These types of offsets are not covered by IRC 6402. This is permissible as being similar to a levy or offset on community property. Assuming that the nonliable spouse who filed the return reported his or her portion of the community income correctly, an offset is only permissible to the extent that state law allows creditors to go against the nonliable spouse's half of community property for an obligation of the liable spouse. This is because in filing a separate return, the spouse who is not liable has already made the allocation, and the reported overpayment would represent his or her share of the overpayment. The examiner should verify that the income was reported properly under community property principles.