Are you considered common law married if you file taxes together?
Englewood, CO |
I live in Colorado and my boyfriend filed taxes last year with his ex but they never claimed they were married, she didn't take his last name and they didn't tell any family or fiends they were married.
Maybe. By filing income taxes which claim that they are married, they are holding themselves out as being married. However, that single act of holding themselves out as being married may not be enough to establish a valid common law marriage. On the other hand, filing taxes as a married couple when you are not married in order to avoid paying more taxes is tax fraud. People should not claim they are married if they do not believe it to be true -- they just might wind up with a divorce court saying that, yes, they are married. And if they are considered as having become married at common law in Colorado, then they are still married wherever they may go, even in states where you cannot become married at common law, until they obtain a divorce.
The issue of common law marriage is a highly complex issue of fact and should be discussed directly with a competent family law attorney. A public forum like Avvo is not the place to delve into the necessary details.
No. But you can file taxes together if you are in a "leagally recognized" common law marriage under state law. State law determines whether you are marrried. Not federal tax law. Federal tax law merely respects state marriages.
The IRS Manual does not really address the issue--except that if could--repeat could, come-up under examination if related to property issues incident to/after a divorce (just because this can trigger a red flag as the rule is simple but the actual application is often a bit muddy) or in an estate tax circumstance where BIG money is involved (which are rare as there are less than 125 examiners and things must be pretty obviously fraudulent or else its ignored).
As my colleagues have said, it's a state issue. Just be sure to be consistent as that is not only an issue as to the validity of the CL marriage it is a red flag to taxing authorities if you change status from year-to-year.
Legal Disclaimer: Richard W. Beck is licensed to practice law in Colorado. His answers are for general information and no Answer or Comment shall be deemed to create an attorney-client relationship or create any right of confidentiality. The reader should never assume that this information applies to his or her specific situation or constitutes legal advice. Therefore, please consult an appropriate attorney in your jurisdiction and who is familiar with your specific facts and all of the circumstances as there is likely a time limit related to the question that could expire at any time and you would lose any rights you had.IRS CIRCULAR 230 DISCLOSURE: As required by U.S. Treasury Regulations governing tax practice, you are hereby advised that written advice contained herein (if any) was not written or intended to be used (and cannot be used) by any taxpayer for the purpose of avoiding penalties that may be imposed under the U.S. Internal Revenue Code.
The party who is claiming a marriage exist bears the burden of proof. So, either the IRS or the ex would be making the claim in some forum. All fact & circumstances would be reviewed. Filing a married filing jointly tax return shows they got the benefit from the status & is compelling to me.