We live in Texas. It's almost tax time and we have a ton of questions. My ex fiancé and I have a child together. Our son lives with me. We were young and not to smart and we filed as married. Now we are split up and we have no clue how that works as far as taxes. So I guess my question is, Do we need to get a legal separation? Even though we were never "on paper" married?
There is no such thing as legal separation in Texas. Since you were never legally married then you need to file as single. You will claim your child as a dependent since he lives with you. I would continue in this manner until he says something to you or attempts to have court ordered visitation (which he is entitled to) initiated. In the case of a custody dispute, you can work out the tax arrangements as part of the dispute.
Again, until something changes legally I would file as single and claim your son as a dependent. If you have further tax questions talk to a CPA.
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Congratulations! You are married. Texas law provides for common law marriage. The three requirements are that you live together as man and wife, represent to others you are married and intend to be married. Assuming you didn't intend to commit tax fraud you are married and must divorce before you can file a tax return as asingle man. Also if you don't get divorced any future marriage will be void because bigamy is illegal.
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I'd go with single, but you should also talk to a tax expert. They are not expensive. Then you should visit with a family attorney and make a formal arrangement to handle the child's welfare.
As for your apparently unintentional common law marriage, there are rules that allow you to depart if you separate and stay separated for two years. I don't pretend to know the details of how this works, but any family lawyer can give you the run-down. But you still need to figure out something on paper about how your child's upbringing is to be handled. Don't mess around on this.
I'm not your attorney; my answer includes assumptions. If you want me to be your attorney, I'm easy to find.
Sit down with a lawyer and determine whether you are common-law married. You may need a divorce or you may just need orders for child support and visitation.
This answer DOES NOT establish an attorney-client relationship. This answer is based on the limited information provided and is not intended to be conclusive advice. There are likely other factors that might influence or change the advice after a more lengthy consultation.
Even though you spoke of your "ex-fiance," the filing of a married federal income tax return may be evidence of a common law marriage which requires an agreement that you are husband and wife, holding out to the public as husband and wife (i.e., filing of a married federal income tax return), and cohabitation thereafter in Texas as husband and wife. Your question also reads as though your filing a married tax return was some kind of mistake which would necessitate an amended federal income tax return. However, if you were common law married, a common law marriage must be dissolved by divorce. The Texas Family Code also provides additional rules concerning common law marriage where you ceased living together some time ago -- that is beyond the facts of your question. You should consult both a certified public accountant or tax expert and an attorney for further assistance. Texas does not have or recognize legal separation, but you need to straighten out your legal status both tax-wise and marital-wise. The claiming of the child's dependency exemption is a complicated question based on issues of who has primarily had possession of the child and providing of support for the child. You should obtain a copy of the tax return and be extra-sure of how you and he filed, i.e., married. If you are legally married, that is another question for a tax expert on how you should be filing your taxes, with or without your "ex fiance."
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