Ask the taxgirl: Common Law Marriage Accepted by IRS?

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!

Comments

  1. Rick

    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. Jim Howard

    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.

  3. Doug Miller

    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.

  4. Bruce G

    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.

  5. Mary

    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.

  6. Author
    Kelly

    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.

  7. Hal

    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.

  8. Rea Simao

    you answered one of your questions about the IRS accepting common law marriage. Well, I ran into this problem for years when I finally got a letter from the IRS saying that because our common law marriage started in the state of Pennsylvania ( we now live in Michigan ) that the common law marriage followed us to Michigan. For years we were filing single with a dependent. After receiving the letter from the IRS we were able to amend our taxes going back 3 years (since that’s all they allow) and we received a great deal more money because we are now filing Married filing a Joint Return. This is straight from the horses mouth, so to speak. I don’t know about other states but it seems to me that if the IRS says your married then you are. Maybe it’s something you might want to check into.

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