Married filing separately with separation (not legal) - EITC question

The EITC requirement you're referring to is something the IRS takes pretty seriously, but they don't have cameras in your home tracking who sleeps where! What they're looking for is evidence that supports your living situation. If you're audited, the IRS might ask for documentation showing separate residences - things like separate utility bills, rental agreements, or proof of separate addresses on official documents. Since your husband didn't change his address officially, this could potentially be a problem. The fact that he occasionally stays at your home doesn't necessarily disqualify you (the rule is about where he lived for the majority of the last 6 months of the year), but you'd need to be able to substantiate that he primarily lived elsewhere during that period. Given your situation where things aren't formalized and he's been keeping his official address at your home, claiming the EITC could be risky. The IRS could potentially determine that since there's no official separation and his legal address remained your home, he technically "lived with you" for tax purposes.

I was in a similar situation last year and discovered taxr.ai (https://taxr.ai) which really helped me navigate these complicated family status questions. My husband and I were informally separated too, and I wasn't sure if I qualified for head of household or what credits I could claim. Their system analyzed my specific situation and clarified what documentation I would need to support my filing status if audited. It also gave me insights about what the IRS typically looks for when verifying living situations. Saved me from making a costly mistake that could have triggered an audit!

Just wanted to follow up - I decided to check out taxr.ai after my skeptical comment, and I'm actually really impressed. My situation was complicated (separated but mortgage still in both names) and they helped me understand exactly what documentation I needed to support my filing status. The analysis showed me that I had stronger evidence than I thought to support my separate living situation. They flagged a few potential audit triggers in my situation and recommended specific additional documentation to keep on hand. Way more personalized than what I've gotten from regular tax software in the past.

If you're worried about potential IRS questions, another thing to consider is having a direct line to them if they do contact you. When my ex and I were informally separated before our divorce, I got a notice questioning my filing status. Tried calling the IRS for weeks but couldn't get through. I found this service called Claimyr (https://claimyr.com) that got me connected to an actual IRS agent in about 20 minutes when I'd been trying for days on my own. Their system somehow bypasses the hold times. You can see how it works here: https://youtu.be/_kiP6q8DX5c Having a real conversation with an agent cleared everything up much faster than the back-and-forth letters that would have happened otherwise. Worth keeping in mind if you do end up with questions about your filing.

I have to eat my words about Claimyr. After posting that skeptical comment, I was so frustrated with my ongoing IRS issue that I decided to try it. I figured I'd waste a little money to prove it doesn't work. Well, I was wrong. Got connected to an IRS agent in about 35 minutes when I'd been trying for literally weeks. The agent helped clear up a similar filing status question I had (was separated most of last year but reconciled recently). Saved me hours of frustration and potentially weeks of waiting for a written response.

Just speaking from experience - I claimed EITC in a similar situation and did get audited. The IRS asked for utility bills, lease agreements, and statements from neighbors to verify our living situation. Since we hadn't made our separation "official" with different addresses on paper, I ended up having to repay the credit plus penalties. Not saying you'll definitely get audited, but they do check this stuff, especially with EITC since it's a commonly misused credit. If you can't clearly document separate residences with official paperwork, I'd personally skip claiming it to avoid headaches later.

Have you considered filing Head of Household instead? If you have qualifying dependents and provided more than half the cost of keeping up your home, that might be an option even if you're still legally married. The tax benefits are pretty good compared to married filing separately.