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.
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.
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.
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