Am I Allowed to File My Husband on My Income Taxes if He Is Incarcerated in a State Prison?

You may be able to file married filing jointly, separately or head of household if your spouse is incarcerated.

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If you're married and your spouse is incarcerated when it comes time to file your federal tax return, you may be able to file as "Married filing jointly," "Married filing separately" or "Head of Household." The filing status you choose will determine the amount of your federal tax refund or the amount you owe. Examine the details to determine which filing status will give you the best results.

Married for Tax Purposes

The IRS considers married couples to be still married even when a spouse is incarcerated. Because you're still married, when it comes time to file your federal taxes, you can choose to file as “Married filing jointly” or “Married filing separately.” The filing status you choose will determine your eligibility for some tax breaks and credits that can increase your refund or decrease the amount you owe.

Filing Jointly or Separately

Whether you should file jointly or separately depends on which filing method gives you the best return. Filing separately means that you'll be solely responsible for the taxes owed if any on your return. If you're due a refund, you'll receive the entire refund you're due. You'll also be taxed at a higher rate than if you filed jointly. Filing jointly also means that if you meet certain income requirements and have a qualifying dependent, you may be eligible to receive several credits, including the Earned Income tax credit. However, if you file separately, you won't be able to claim the Earned Income tax credit and some other credits.

Filing Head of Household

According to the Internal Revenue Service, if you and your spouse didn't reside together at any time during the last six months, you may be eligible to file “Head of Household.” So, if your spouse has been in prison for more than six months and you have a qualifying child, you may be eligible to file “Head of Household” and claim the Earned Income tax credit. This refundable credit can add several hundreds, maybe even thousands, of dollars to your refund. Filing "Head of Household" also means that you will be solely responsible for any taxes owed or receive any refund due.

Dependency Requirements

However you choose to file, you can't claim your husband as your dependent if he has been incarcerated for more than six months. IRS dependency guidelines require your dependents to have resided with you for at least six months during the year. For additional information about which filing status you should use if your spouse is incarcerated, contact the Internal Revenue Service at