How to File Taxes When Married to a Foreign Spouse
Is there anything more romantic than taxes? Well, probably. But that doesn’t mean you and your spouse should avoid the issue altogether, especially if one of you is a non-US citizen. In fact, filing taxes as a married couple can make things more complicated. And depending on where you live and work (and other factors), you may have to file separate state and federal returns. So, how do you file taxes when married to a foreign spouse? Here’s what you need to know.
Key Takeaways
- US citizens married to foreign spouses can file as married filing separately. If they have children and these children have US tax identification numbers, they may be able to file as Head of Household. If their foreign spouse has a US tax identification number, they can also choose to file as Married Filing Jointly.
- Whether or not a foreign spouse must file a tax return depends largely on whether the foreign spouse is considered a resident or non-resident of the US.
- Filing status is important as filing as Single or Married Filing Separately gives you the lowest standard deduction, filing as Head of Household gives you a higher standard deduction, and Married Filing Jointly gives you the highest standard deduction.
How your decision around filing joint taxes pans out depends primarily on one question…
Is Your Foreign Spouse a US Resident?
YES: my spouse has a Green Card or is considered a resident alien
In this scenario, the process is quite straightforward, meaning that your spouse has no choice but to file their US taxes – whether they live in the US or abroad. This means that they have to declare all of their income, even if it is earned in a foreign country.
Being in the US temporarily is not enough to require a foreign spouse to have to file and pay US taxes. But if living there permanently or when the Significant Presence Test is met, they do have to file and pay US taxes.
The Significant Presence Test looks at how much time was spent in the US during a three-year period. The actual calculation is a little tricky. However, if less than 31 days were spent in the US in a particular year, then a US tax return does not need to be filed for that year. The general rule of thumb is that if a person spent, on average, 120 days or more in the US each year for a three-year period, they are required to file a US tax return. When a foreign spouse does spend a lot of time in the US, it’s important to keep track of the number of those days. It is also possible to plan in advance to avoid meeting the Significant Presence Test so that no US taxes will be due.
A foreign spouse can make an election to be taxed as if they were a US citizen. This is known as a 6013g election and is usually done shortly before a couple moves to the US. The main reason for doing this is it helps the foreign spouse’s immigration application. Making this election requires the foreign spouse to file tax returns and pay tax on their worldwide income just as if they were a full US citizen. Normally it is best to work with not only a tax expert but also an immigration attorney when considering making a 6013g election.
NO: my spouse does not have a Green Card and is considered a nonresident alien.
In this situation, the foreign spouse does not have to file a US tax return and pay tax on their worldwide income. The only US tax the foreign spouse would have to pay is from any income earned directly from the US. This generally incomes any US rental property owned, and business conducted in the US, and any investment income earned from the US. This type of income would require a form 1040NR to be filed each year.
Whether or not a US citizen or Green Card holder has to file a US tax return is usually based on the standard deduction. If the total income earned is less than the standard deduction for your filing status, you generally do not need to file a tax return. However, when married to a foreign spouse, you are considered married for US tax purposes and the income threshold to be required to file a tax return drops to a surprisingly low amount. Just $5 or more of income requires you to file.
How to file taxes when getting an SSN or ITIN for your foreign spouse
In order to claim the higher standard deduction for filing jointly with your foreign spouse, you need to get either an SSN (Social Security Number) or an ITIN (International Taxpayer Identification Number) for them. You can apply for an SSN for your spouse with an SS-5 form at any Social Security Office or at a US Embassy or Consulate in foreign countries. Should you not be able to get an SSN, then opt for an ITIN, which is issued to nonresident alien spouses of US citizens in precisely these circumstances. There are a number of ways to get an ITIN and how to file those taxes, and the first step is to prepare a W-7 form.
Should I or can I claim my spouse who lives overseas?
Filing your expat taxes separately or together with your spouse is a choice you are free to make yourself. There is no wrong answer to can I claim my spouse who lives overseas, and it’s just a matter of weighing which path will benefit you the most. And the best thing about it is, should your financial situation change in the next few years, you will be able to change your filing status from joint to single easily or the other way around.
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