ldreyna Posted February 12, 2011 Report Share Posted February 12, 2011 A couple living together in Texas, have mortgage and land under both names, each file single since they are not married. Does this mean that they can choose "single" or "MFJ"? Texas is a community prop. state, so if they are considered as common-law married, do they have to file as "MFJ" or since they are not legally married, can they each file "single"? In my 16yrs of doing i.t. I really never thought about it till now when someone asked. Does anyone have any suggestions? Thanks, Larry Quote Link to comment Share on other sites More sharing options...
Pacun Posted February 12, 2011 Report Share Posted February 12, 2011 Common law marriages are not considered marriages for income tax purposes. Domestic partners cannot file MFJ either, correct? Quote Link to comment Share on other sites More sharing options...
Kea Posted February 12, 2011 Report Share Posted February 12, 2011 I *believe* (but don't have a cite for) that IRS recognizes common law marriage. If the couple considers themselves married, the IRS does, too. Would not be eligible for Single. And MFS in a community property state is a pain & should be avoided. I have a client that is common law married and been filing MFJ for years. Now that they broke up, they need a REAL divorce. Apparently, there is no such thing as a common law divorce. (I learned that last year from a lawyer in Texas.) Quote Link to comment Share on other sites More sharing options...
ldreyna Posted February 12, 2011 Author Report Share Posted February 12, 2011 I *believe* (but don't have a cite for) that IRS recognizes common law marriage. If the couple considers themselves married, the IRS does, too. Would not be eligible for Single. And MFS in a community property state is a pain & should be avoided. I have a client that is common law married and been filing MFJ for years. Now that they broke up, they need a REAL divorce. Apparently, there is no such thing as a common law divorce. (I learned that last year from a lawyer in Texas.) But, do theyHAVE to file MFJ or in this situation, can they choose from both "singe" and MFJ? Quote Link to comment Share on other sites More sharing options...
Lion EA Posted February 12, 2011 Report Share Posted February 12, 2011 If they are married under the laws of their state (if it accepts common law marriage and they hold themselves out as married) they can choose between MFJ and MFS. If they are not married, their only choice is S. (If children, HOH comes into play, but you didn't ask about that.) And, as has been mentioned, if they have been MFJ and held themselves out as married under common law, then they need a divorce before they can be single for tax purposes. Quote Link to comment Share on other sites More sharing options...
ldreyna Posted February 12, 2011 Author Report Share Posted February 12, 2011 If they are married under the laws of their state (if it accepts common law marriage and they hold themselves out as married) they can choose between MFJ and MFS. If they are not married, their only choice is S. (If children, HOH comes into play, but you didn't ask about that.) And, as has been mentioned, if they have been MFJ and held themselves out as married under common law, then they need a divorce before they can be single for tax purposes. Thanks Quote Link to comment Share on other sites More sharing options...
jlewis Posted February 12, 2011 Report Share Posted February 12, 2011 In Pub 501, pg 5, you are considered married for the whole year if on the last day of the year you meet one of the following tests: (item no.2)living together in common law marriage recognized in the state now live or in the state where began. Just wondering since I don't live in one of these states- a)when does common law marriage begin, an "official same sex marriage ceremony" or an arbitrary selected date? b)is there a legal proceeding to end or dissolve it, or whenever one or both the parties decide? Since there are "official" documents for conventional marriage and divorce, curious as to what would satisfy IRS when common law marriage began and ends for filing status. Thanks Quote Link to comment Share on other sites More sharing options...
Kea Posted February 12, 2011 Report Share Posted February 12, 2011 In general, IRS does not recognize same-sex marriage. They have recently made a few exceptions for community property states that have legalized same-sex marriage. Texas is not one of those. So, if they are a same-sex couple (not specified either way in original post), they could not be common law married in Texas. Only option would be Single (or HOH). Texas does not recognize same-sex marriage by ceremony or common-law. (Granted, I'm not sure what happens if they married in CA or MA and then moved to TX.) I'm not sure how to determine the date of common law marriage. I think some states state that they have lived together for at least a year & hold themselves out to be married. The couple I had that was common law married had been together for several years, so I really didn't pursue the specifics. Quote Link to comment Share on other sites More sharing options...
Lion EA Posted February 12, 2011 Report Share Posted February 12, 2011 They have to meet the state requirements in the state in which they reside at the time they want to hold themselves out as married. So, if they are exploring the idea, have then start researching on their state web site. If you are checking to see if you can believe what they're telling you, you start researching on their state web site or with a friendly, local lawyer who owes you a favor. And, yes, has been mentioned, a common law marriage ends with a legal divorce the same way a traditional marriage ends. There is no common law divorce on the books of any state. You're asking legal questions specific to your state, so try a legal message board. Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted February 12, 2011 Report Share Posted February 12, 2011 Different states have different requirements for being considered a common-law marriage. But I think all of them require that the couple 'hold themselves out as married'. Filing a joint return is one of the ways you 'hold yourself out as married', so if they ever do file that way, they can not switch back to single without getting a divorce. But simply 'living together' does not, in most states, meet the test. If they own property jointly, looking at the documentation will tell you whether they bought it as "Joe Blow, a single individual, and Mary Jones, a single individual" or as "Joe and Mary Blow" or as "Joe Blow and Mary Jones, a married couple". Either of the latter two would constitute 'holding themselves out as married', and make the only options MFJ or JFS. Quote Link to comment Share on other sites More sharing options...
Pacun Posted February 13, 2011 Report Share Posted February 13, 2011 Different states have different requirements for being considered a common-law marriage. But I think all of them require that the couple 'hold themselves out as married'. Filing a joint return is one of the ways you 'hold yourself out as married', so if they ever do file that way, they can not switch back to single without getting a divorce. But simply 'living together' does not, in most states, meet the test. I agree. In Virginia, you can get married within minutes even if you don't live in the state. There are requirments though!!!!! For men, they have to meet 3 requirements: 1.- $20 (twenty dollar) fee 2.- a woman of legal age 3.- willingness to be married When a client comes to me and they ask me about my oponion about filing jointly I ask: Do you have $20 dollars? is you girlfriend of legal age? ALL THE TIME they say yes. All you need is number 3 and if they meet that requirement, I suggest you to go drive 10 minutes and get married and then you are ready for next year. If they bring me a marriage certificate before April 15th, and they have lived together the last year and they want to file jointly, I do it. Be carefull taxpreparers when you file jointly if they are not married. Keep in mind that by doing that, (it is possible) you became a judge and married those persons and that will have lasting effects. Quote Link to comment Share on other sites More sharing options...
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