We have no assets and have been living apart for two years. My concern is the irs. Since neither of us filed anything to prove the marriage existed, texas assumes it never happened. (http://txfamilylaw4u.blogspot.com/2009/09/how-to-end-common-law-marriage.html)
For the three years we filed as married, did we commit tax fraud? If so, how many years back can we be audited?
Thank You!For three years we filed married, two married seperatly, now i want to file single.
Did you and your purported spouse (1) have an agreement to be married; (2) live together after that agreement was reached; and (3) hold yourself out as husband and wife?
If the answer to all three of these questions is "yes," then you are married and will need to seek a divorce through the judicial system.
Please note that the presumption given in Fran's blog article is, as she indicates, is capable of being rebutted in a court of law by evidence that you were married.
Remember - where there is "informal marriage" (common law marriage) in Texas, there is no "common law" divorce. Once you are married, only the State of Texas can legally separate you.
"Since neither of us filed anything to prove the marriage existed, texas assumes it never happened."
Well, sort of. Not exactly. There are a lot of potential common law marriages out there that there really is at best a he said/she said situation on--who knows whether they really ever agreed to be married, and four of their friends say they were married, while another four say, "Whaaat?! Everybody knew they were just dating!" In that kind of situation, that two year thing is a little more applicable--as long as no one files for divorce in those two years (or a probate action, etc.), it is presumed the marriage never existed. There's a big "but" there, though, and that would be that it's a "rebuttable presumption ". That means that the question of marriage v. No marriage is not really over after two years, because if one of the "spouses" can produce some evidence to overcome that presumption, it all opens back up. Tax returns signed as husband and wife would be a good example of the sort of evidence that could be used in such a case to establish that there really was a marriage. If there aren't any assets, a divorce shouldn't end up being that much of an ordeal, and it's sure better than later being accused of bigamy or tax fraud, isn't it?
Since you file a married tax return together, tha is evidence that you two are in fact common law married. Normally, you would need to go through a normal divorce process. However, Texas law states that if either party wants to claim that the common law marriage was a valid marriage then the person must file the divorce action within 2 years of the date of separation. Since you state that
you have been separated for 2 years, I don't believe that a divorce is necessary.
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