Married couples usually have the option to file their income taxes jointly or separately, with the decision hinging on your financial situation and tax needs. If you’re married to a noncitizen who legally resides in the United States, you can file as married if you meet the same requirements as other married couples, or may choose to file separately. If your non-citizen spouse resides in another country, you may also file as married.
Requirements for Filing Jointly
If your non-citizen spouse is legally married to you and legally resides in the United States, you can file as married if you were married as of Dec. 31 of the year for which you pay taxes. The Internal Revenue Service also recognizes common-law marriages if you meet the requirements to be recognized as a common-law husband-and-wife in your state. Additionally, couples who are separated but not legally divorced may also choose to file jointly. Married couples receive benefits such as tax credits to care for children and the elderly and may make deductions for a non-working spouse.
Nonresident Alien Spouse
If your spouse resides in another country, you may choose to file jointly if you declare that you choose to be treated as U.S. residents for the tax year. To do so, you must notify the IRS that you wish to be treated as residents when you file you joint return. If you choose this, both spouse’s earnings are taxed at the rate for U.S. residents, and the spouse who lives in a foreign country waives the right to any tax treaties that may reduce his tax burden in the states.
Resident Alien Couples
If you’re a legally residing alien married to another legal alien you may not file as married. The IRS requires that one spouse in the marriage be a U.S. citizen to file jointly and take advantage of tax benefits enjoyed by married couples. Instead, a pair of nonresident aliens must file their taxes as married filing separately. Indicate your spouse’s identity on your return using her name and Individual Taxpayer Identification Number issued by the IRS for tax purposes.
Married to an Illegal Alien
If your noncitizen spouse isn’t a legal resident of the United States, you can’t file a joint return. Instead, you should file separate returns, listing your spouse by her ITIN number. If your spouse hasn’t received an ITIN number for tax purposes, she must register with the IRS to receive an identifier. The IRS doesn’t share tax information with any other agency and receiving an ITIN won’t increase her chances of deportation by observing tax law.