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If I am separated (no legal decree) from my husband for just over two years and have been unable to work due to caring for children and illness.

I get ~$3700/month from him labeled as "Separation Support" and use that to pay for more than 50% of the care of our children and to maintain a household.

Am I "providing" or is he providing according to U.S. and New Jersey Law?

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I am not a financial/law expert by any means.

If he is not legally obligated to provide you that "seperation support" then I would consider that as him providing the support to you/the child.

If he is legally obligated to pay you support then I would consider that money as your entitlement and consider it as income. Then if you spend that "income" to provide >50% of the care then you would be providing.

It sounds like he is providing based on the question however. If he is giving you 3700/m without legal obligation and you do not have any substantial income I don't see how a court could consider you a provider.

  • Thanks @MikeSaull. I also posed my question & f/u to Divorce Education Center of New Jersey. Received replies from a CFO affiliated w/ them. If I've lived apart from spouse for >6 mos, maintained main household for my children, household is my home, I've provided for > half the cost of maintaining household & I'm a U.S. citizen...I am then "providing" and can be considered a "head of household." To my follow up questions he confirmed that me paying with my husband's "separation support" counts as me "providing" for tax purposes and it is my "home" even though deed is still in both our names. – Stressed out mom Apr 3 '13 at 17:34
  • @Stressedoutmom He's the tax expert I would go with what he says. Do you have to pay income tax on the money he gives you? Or because you are still married it doesn't count as income for yourself? If it was legally binding separation support I would assume that is tax-free since he already paid the tax on it. If you were not married/separated I would think IRS would consider that gifting and part of taxable income. Divorce makes things more complicated though and I have no experience with these issues. Go with what the expert says though in any case. – Mike Saull Apr 4 '13 at 14:48

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