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Ask the taxgirl: Common Law Marriage Accepted by IRS?

November 20, 2008 · 9 comments

Taxpayer asks:

Hello Taxgirl,

My girlfriend and I were common law married in 2005. We filed our own taxes for 2006. In 2007, we went to a tax accountant. He says we cannot file as married on our tax return. I say we can since we’re common law married. Who’s right? We live in Pennsylvania.

Taxgirl says:

Unfortunately for you, your accountant is right on this one.

For the most part, the feds follow the state’s definition of married (as we as separated and divorced) when it comes to tax status; a notable exception is gay marriage which is not recognized at the federal level.

And you’re right that it would make sense to file as married on your federal income tax returns if you’re legally common law married – tax returns are often considered good evidence that you treated yourselves as actually married.

All of that said, Pennsylvania no longer recognizes common law marriages. After some back and forth in the courts, the Pennsylvania Legislature passed a law which abolishes new common law marriages on or after January 1, 2005. Common law marriages prior to that date may be grandfathered (assuming you can prove it).

As of this year, only Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas plus the District of Columbia recognize common-law marriage. Pennsylvania is one of five states which recognizes common law marriages established before a date certain; the others are Georgia, Idaho, Ohio and Oklahoma. Utah recognizes common law marriage if verified by a court (though I’m not quite sure why you just wouldn’t get married in that case).

So, sorry to be the bearer of bad news here, but it looks like you have to either each file as single or consider getting legally married.

Good luck!

Like any good lawyer, I need to add a disclaimer: Unfortunately, it is impossible to give comprehensive tax advice over the internet, no matter how well researched or written. Before relying on any information given on this site, contact a tax professional to discuss your particular situation.

Have a question? Ask the taxgirl!

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{ 9 comments… read them below or add one }

1 Rick November 20, 2008 at 5:48 pm

Of course this is not necessarily a bad thing. If you both make a lot of money you may pay less as single or at least no more. If you have a child you will pay way less. If one of you did not work or made less than the exemption amount the person with the small or no income may be the dependent of the other. Frankly from a tax standpoint (and only from a tax standpoint) had my wife and I never married but simply lived together we’d paid way less in tax over the years. Although recent changes have done away with most of the marriage penalty. It might be fun (yes, taxes are fun) to amend that 2006 return and see what, if any, the diference is.

2 Giovanna Garcia November 21, 2008 at 12:30 pm

This is a great blog! It is like Dear Abby, but for Tax stuff. I am glad I found this blog.

Thank You,
Giovanna Garcia

3 Jim Howard November 21, 2008 at 1:04 pm

Here in Texas it’s pretty common for folks to want to file MFJ as common law spouses, and then latter want to split up and go back to filing single.

It’s my understanding that tax preparers can marry two people in the eyes of the IRS by filing them MFJ, but then the IRS will expect them to get a ‘real’ divorce before they can go back to filing as single individuals.

4 Doug Miller November 22, 2008 at 7:44 am

The IRS does require the taxpayer to obtain a decree of divource to allow a change in filing status from MFJ to Single. HH status may be used if specific qualifications are met, including that the partner has not lived with the taxpayer for the last six months of the tax year. There are also specific conditions concerning the dependent(s) and the residence that have to met as well.

5 Bruce November 23, 2008 at 9:28 am

Oh my, the fun we have with something so simple as filing status.

6 Bruce G November 23, 2008 at 10:16 am

Out here in California – where common law marraige is not recognized – we have another twist – Registered Domestic Partners. These couples are required to file Married Jointly or Married Separately in California, but their status is not recognized by the IRS, so they are required to file as Single for Federal purposes. This has created some interesting tax outcomes.

7 Mary April 7, 2009 at 7:35 pm

I am married, but living separately from my spouse. I have been filing as single, as I understand that is legal under these conditions. Can you please verify? Thank you.

8 Kelly April 7, 2009 at 7:42 pm

It really depends on the laws of your state. If you are considered legally separated in your state of residence, then you could file as single. But simply living apart doesn’t qualify in many states – like my own state of Pennsylvania! Ask a family lawyer to confirm your status.

9 Hal May 2, 2009 at 2:27 pm

Florida also recognizes common-law marriage before a date certain. See Florida Statutes 741.211.

741.211 Common-law marriages void.–No common-law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.

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