Keith Mack
Whether or not a couple has to file jointly depends on their marital status and the state they reside in. Common-law marriages are recognized for federal income tax purposes if recognized by the state in which the couple resides. If a couple is in a legally recognized common-law marriage in the state where it began, they can choose a married filing status. Filing a joint tax return can be used as evidence of a common-law marriage. However, if a couple later separates, they will need to get divorced, as there is no such thing as common-law divorce.
| Characteristics | Values |
|---|---|
| Common-law marriage recognition for federal income tax purposes | If recognized by the state in which the taxpayers reside |
| Filing jointly | Considered married for tax purposes, even if moving to a state that doesn't recognize common-law marriage |
| Filing separately | Possible, but may impact eligibility for tax credits and deductions |
| Tax liability | Each individual is responsible for taxes in full |
| Joint tax return as evidence of marriage | Accepted as proof of marriage ("holding out") |
| Common-law marriage exemption | $600 for a common-law wife with no gross income and who is not a dependent of another taxpayer |
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What You'll Learn
Common law marriage and joint tax filing
Common-law marriages are recognized for federal income tax purposes if they are recognized by the state in which the taxpayers reside. If the taxpayers' state of residence recognizes common-law marriages, they are entitled to file joint income tax returns and will be considered married for tax purposes. Filing a joint tax return can also serve as evidence of a common-law marriage.
However, if the taxpayers begin and maintain their relationship in a state that does not recognize common-law marriages, they will not be considered married for federal income tax purposes. In such cases, they cannot file joint tax returns as a married couple.
It is important to note that taxpayers who are legally separated or divorced are not considered married for tax purposes and should not file joint tax returns. If taxpayers obtain a divorce and later remarry, they are considered married for federal income tax purposes.
When deciding whether to file jointly or separately, married couples should consider the potential tax implications of each filing status. Filing jointly typically offers a higher standard deduction, reducing the couple's taxable income. However, filing jointly also makes each spouse responsible for the taxes in full, which may carry certain risks in the event of a separation or divorce.
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Common law marriage recognition by state
In the United States, common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that survives only in a handful of states and the District of Columbia, along with some provisions of military law. The term "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights. The origins of common-law marriage are uncertain, but it is believed to have originated in colonial America, where few clerics or civil officials were present to perform ceremonial marriages.
As of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. The status of common-law marriage in Utah is ambiguous, with government websites claiming it does not exist, while other legal sources state that "non-matrimonial relationships" may be recognized as marriages within one year of the relationship ending.
Some states have abolished common-law marriage but still recognize them if they began before a certain date or for specific purposes. These include Alabama (if created before January 1, 2017), Florida (before January 1, 1968), Georgia (before January 1, 1997), Indiana (before January 1, 1958), Ohio (before October 10, 1991), and Pennsylvania (before January 1, 2005).
It is important to note that all states recognize common-law marriages if the couple was married in a common-law marriage state. Under the United States Constitution's full faith and credit clause, states must respect the laws of other states. However, this only applies if the couple meets all the requirements of a common-law marriage while living in the common-law marriage state.
Common-law marriage is established when a couple has the capacity to enter into a marriage, with legal parental consent and agreement, public recognition of the marriage, and consummation. Filing a joint tax return is often considered an element of common-law marriage, as it fulfils the requirement of "holding out" or presenting as a married couple.
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Common law divorce
Common law marriages, also known as informal marriages, are legally recognised in some states. The requirements for common law marriage are set by the states, and not the federal government, and can vary significantly. For instance, in Texas, a common law marriage may be proved by evidence that the couple lived together, assumed the other's last name, presented themselves as married, or filed joint tax returns.
If a common law married couple separates without going through a legal divorce, one partner could later claim assets from the marriage, just like a partner in a regular marriage. This includes assets acquired during the marriage or brought to the marriage by the other partner.
The process of obtaining a common law divorce varies by state, as not all states recognise common law marriages. However, in states that do recognise common law marriages, couples must pursue a standard divorce, similar to any other couple that married through traditional means. For example, in Texas, ending a common law marriage is similar to ending a formal marriage. If a common law couple decides to split up, they must file for divorce. If court proceedings are not filed within two years of separation, Texas law presumes a common law marriage never existed unless proven otherwise.
When seeking a divorce, individuals must typically demonstrate the validity of their common law marriage, often through evidence like cohabitation, shared finances, or public acknowledgment of the relationship. Understanding the local laws governing common law marriages is key to resolving legal and financial matters effectively.
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Common law marriage and individual tax returns
Common-law marriages are recognized for federal income tax purposes if they are recognized by the state in which the taxpayers reside. If a couple is in a legally recognized common-law marriage in the state where it began, they can choose a married filing status. This can affect their tax rates, eligibility for certain tax benefits, and the amount of their standard deduction.
For example, if a common-law marriage is recognized by the state, a couple filing jointly may be eligible for a bigger standard deduction, reducing their taxable income. However, there are also potential risks associated with filing jointly. For instance, in the event of a separation, a couple that has filed joint tax returns would be jointly and severally liable for taxes in full.
It is important to note that if a couple begins and maintains a common-law marriage in a state that does not recognize such marriages, they will not be considered married for federal income tax purposes. Additionally, taxpayers who file joint tax returns and later have their marriage annulled must file amended returns as single taxpayers.
To determine the best course of action, it is recommended that couples prepare their tax returns both jointly and separately, comparing the net refund or balance due from each method to make an informed decision. Consulting with a tax professional or using tax software can also help common-law married couples navigate the tax implications of their filing status.
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Common law marriage and joint tax return evidence
Common-law marriages are recognised for federal income tax purposes if they are recognised by the state in which the taxpayers reside. If the state in which a couple resides recognises common-law marriages, the couple can file joint tax returns. This joint filing can be used as evidence of their marriage.
In the case of taxpayers who enter into a common-law marriage in a state that recognises such a relationship and later move to a state that does not, the marriage is still valid for tax purposes. However, if a couple begins and maintains their relationship in a state that does not recognise common-law marriages, they will not be considered married for tax purposes.
The determination of an individual's marital status is made on the last day of their taxable year. Thus, if taxpayers marry on or before December 31, they are considered married for the entire taxable year.
When filing taxes, married couples have the option to file jointly or separately. Filing jointly typically results in a larger standard deduction, reducing taxable income. For example, for couples under 65, the standard deduction was $29,200 in 2024 and will increase to $30,000 in 2025.
It is important to note that if a couple files a joint tax return, their tax liability becomes "joint and several", meaning each partner is responsible for the taxes in full. Therefore, it is recommended to carefully consider the potential tax implications of filing jointly or separately before making a decision.
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Frequently asked questions
Yes, if you are considered common-law married, you can file jointly. However, whether a marriage is recognised for tax purposes depends on state law. Common-law marriages are recognised for federal income tax purposes if they are recognised by the state in which the taxpayers reside.
If you file a joint tax return, your tax liability becomes "joint and several", meaning you are each responsible for the taxes in full. If you separate, you will need to get divorced, with all the property and support obligations that entails.
If you are in a legally recognised common-law marriage, you can choose a married filing status. You can file as 'married filing separately', but this may affect your tax rates and eligibility for certain tax benefits.
