Rulings of the Tax Commissioner

Under the Internal Revenue Code, a husband and wife are allowed to file a joint income tax return in most cases. This rule does not apply to "an individual who is legally separated under a decree of divorce or of separate maintenance . . . ." 26 USCS § 6013 (d) (2). The Code of Federal Regulations makes it clear that a "legal separation" is more than just a physical separation of the spouses, however. Under the Regulations, "the mere fact that spouses have not lived together during the course of the taxable year shall not prohibit them from making a joint return. A husband and wife who are separated under an interlocutory decree of divorce retain the relationship of husband and wife until the decree becomes final." 26 CFR § 1.6013-4 (a).

The Commonwealth conforms to these guidelines. The Virginia Administrative Code states, "In determining whether two individuals are husband and wife for income tax purposes, the determination of marital status for federal income tax filing purposes will similarly control the determination of filing status for state income tax purposes." 23 VAC 10-110-240 (C) (1). Therefore, a taxpayer's "filing status for Virginia income tax purposes is dependent upon [his] status for federal income tax purposes." Public Document 82-3 (1/12/1982). This is indicated in the instructions for the Virginia Form 760.

Under the laws of Virginia, there is a form of divorce that is similar to what other states refer to as a legal separation, but it is rarely used. This is called the divorce a Mensa ET thoro. This type of a divorce, also known as a divorce from bed and board, is "[a] partial or qualified divorce, by which the parties are separated and forbidden to live or cohabit together, without affecting the marriage itself; this type of divorce was the forerunner of modern judicial separation." Black's Law Dictionary 203 (Bryan A. Garner ed., pocket ed., West 1996). Thus, a taxpayer who holds a decree for this type of divorce in Virginia would be required to file as a single taxpayer on both the federal and Virginia income tax returns. Currently, there is no other situation in which a married taxpayer who separated from his spouse in Virginia could use the single filing status.

The confusion surrounding this issue is understandable, as it is possible for a married couple to be separated without being "legally separated" under the law. This may be true even when the court has intervened in some manner. In a case involving whether a Virginia taxpayer could use the single filing status, the United States Tax Court stated that "the law itself is clear that in order to be considered an unmarried individual, a taxpayer must be 'legally separated' from his spouse 'under a decree of divorce or of separate maintenance.' The mere intervention by a court during the pendency of a divorce proceeding ordering a party to vacate the marital home or to provide alimony and child support is not equivalent to a 'legal separation' . . ." Hill v. Commr., T.C. Memo 1983-112, 10-11 (Tax 1983).

Thus, married couples may decide on their own to physically separate. In addition, they may seek an order from the court for various reasons, such as providing for some sort of spousal maintenance or child support. The court may even issue an order that one of the spouses must leave the marital home. None of these actions, however, would be enough to allow the taxpayer to use the single filing status under the federal and Virginia regulations.

Finally, I must add that this discussion pertains only to those taxpayers who choose to pursue a marital separation within the Commonwealth. Taxpayers with a qualifying decree of separate maintenance that is issued by another state would, of course, be allowed to use the single filing status for both the federal and Virginia income tax returns.

I trust that this reply answers your request for clarification. Thank you again for taking the time to share your concerns and suggestions with *****.

• • • • • • • • Sincerely,

• • • • • • • • • Janie E. Bowen
                Tax Commissioner