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If i was "common law marriage" and claimed taxes as married do i have to get a divorce decree?

Houston, TX |

I was common law marriage for 5 years and sepearted 6 mothns ago. Can i file taxes as single or do i need to get a divorce decree?

Attorney Answers 5


  1. There is no such thing as "common law divorce," so if your marriage was commenced at common law a legal divorce is needed to end it. In the meantime, nobody is required to file a joint income tax return. If you are married and not yet divorced, the proper category is "married filing singly" not "single." Be aware that the tax is less and the refund greater when married people file jointly.

    For the precise advice you need for your situation, your needs will be best served by consulting with an experienced family law practitioner near you.

    Best wishes for a favorable outcome, and please remember to designate a best answer.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.


  2. If you were in a valid common law marriage you remain in that marriage until divorced.

    Under the rules governing the conduct of attorneys in New York it may be necessary to remind you that this answer could be considered attorney advertising.


  3. If you are married by common law in a state that recognizes common law marriages, then you need to get a divorce. For tax issues see a CPA.

    If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.


  4. As long as you are married under state law on the last day of the year, which it sounds like you might be, you must file as Married Filing Separately, or Married Filing Jointly.

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  5. I don't know why people that don't practice in Texas answer these Texas common law marriage questions.

    I'm not getting any "points" for answering this question -- but I cannot ignore the somewhat vague answers that the other attorneys gave you.

    The Texas legislature has been tweaking this section of our family code & making it a nightmare for family law attorneys and for the public. The public definitely does not understand the common law marriage provisions of the Texas Family Law Code anymore! I hope my answer makes sense and does not totally confuse you!

    Actually, Texas does now have something that might be considered "common law divorce" -- but you don't qualify for it for another 1-1/2 years! (It is too complex to go into here -- but generally if you stay separated over 2 years then it is presumed that the two of you never intended to really be married -- that presumption can be rebutted by either party to the common law marriage -- but it is rare that this occurs because most common law marriage never involved much community property assets.)

    The legislature passed this "common law divorce" law because a popular sports figure had a "gold-digger" get millions of dollars by claiming a common law marriage because they spent one night together as "mr & mrs ....." at a texas hotel & she claimed they were common law married for years. The legislature determined that after 2 years if a couple was apart there never was a marriage. The legislature never wanted another "gold-digger" to ruin a man's life so easily again.

    Also, I don't know what the IRS will think since you filed married & the IRS does not like it when you switch to single without filing for divorce. But since I'm not a CPA, I don't give accounting advice. I refer my clients to CPA and let them figure it out or I file for divorce for them if their CPA tells them to file for divorce.

    If you need a CPA, call A. Charles Weiner, CPA. I've used him for years and I highly recommend him & his prices are very reasonable. Tell him that I sent you.

    In summary, I would talk to a CPA. but I suspect that you need to file for divorce.

    Additionally, if you want to make sure that you don't get sued for something he does for the next 1-1/2 years I suggest that you file for a divorce.

    Look on this website for an experienced family law attorney in the Harris County area.

    Merry Christmas!

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