Taxpayer asks:
In 2005 we filed for Bk chpt 7. We were told we now have to file married joint we are now commonlaw in Texas per this attorney so we did. We want to file single because we are not married we have no documents can we just file single or do we have to find a way to devorce even if we r not married
Taxgirl says:
If you’re a regular reader of the blog, you know that I’m not the biggest fan of common law marriage. While I understand the rationale for having it back in the day, I find that now, it often just causes confusion for exactly the reasons you’re touching on. The problem with a marriage that isn’t clearly documented on paper is that there tends to be way too much ambiguity: the whole “are we or aren’t we?”
Let me just get part of the issue out of the way: not every state recognizes common law marriage. As I understand it, only Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas and District of Columbia currently recognize common law marriage. Other states, like Pennsylvania, recognize common law marriages entered into before a certain date, while others, like Delaware, never recognized common law marriages in their own state. Most states, however, do honor valid common law marriages in another state. You’ll want to check with an attorney in your own state to find out the exact nature of the laws in your state.
Whether or not your state recognizes common law marriage is important because the IRS follow the laws of your state to determine your marital status for tax purposes. If you are legally common law married in Texas, then the IRS would also consider you married. If you are not legally common law married in Pennsylvania, then the IRS would not consider you married.
That said, you can’t put yourself out as common law married for some situations and not others, nor for certain tax years and not others. It doesn’t work that way for tax purposes. You are either married or you’re not.
Keep in mind if you are common law married that you cannot get common law divorced. A legal marriage, common law or otherwise, must be legally dissolved to no longer be valid. If you have held yourself out as common law married, you’ll need to get a divorce to no longer be married; check with a family lawyer for the specifics on this one.
It’s important to be consistent and truthful on your federal income tax returns. If you’re uncertain about your marital status, check with your tax professional or family lawyer.
Like any good lawyer, I need to add a disclaimer: unfortunately, it is impossible to offer comprehensive tax info over the internet, no matter how well researched or written. And remember, I love my readers but having me bookmarked on your computer doesn’t make you a client: before relying on any information given on this site, contact a tax professional to discuss your particular situation.
New Hampshire only recognizes common law marriage for purposes of inheritance when the “spouse” has died. It does not recognize it for any other purposes.
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