Manassas, VA asked in Divorce and Tax Law for Virginia

Q: In Virginia I have been separated 3 years but no legal separation exists in state. Can we file single/head of household

We have 3 kids and agree to swap every other year 2 kids one parent and the other parent with the third child. Separated 3 years living in different homes. Virginia law does not recognize legal separation while federal tax law would consider us unmarried. Can we each file head of house some how

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1 Lawyer Answer
James H. Wilson Jr.
James H. Wilson Jr.
  • Glen Allen, VA
  • Licensed in Virginia

A: The Virginia Court of Appeals has recognized a divorce from bed and board as a legal separation, so Virginia does have a legal separation. This is an intermediate form of divorce based on fault grounds only, that does not allow one to remarry, but recognizes you are no longer sharing the same bed and table. You should consult with your tax advisor, but I believe a signed written separation agreement with form 8332 may be sufficient, or, alternatively, a filing for separate maintenance. A well-drafted separation agreement will address who can claim the exemption and require a party to sign an IRS form 8332 releasing the exemption.

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