Photo by Carrie Phisher on Flickr.com.
I often get contacted by people who are facing an audit based upon their “family relationship.” The IRS will send an inquiry about a person’s relationship to a child in an EIC claim and the person being audited will say that he or she is “common law” married to the child’s birth parent.
Here’s the thing: the rules for common law marriage are very specific. I know that a lot of people seem to think that a couple is common law married if they live together for seven years. That’s just not true. (I used to believe that too, it’s something I was told when I was a kid.)
But in reality, there are only certain states that recognize common law marriage. If a couple is deemed common law married in one of those states and then move to a non-common law marriage state, the new state still has to recognize the marriage.
In most common law states, you can’t just say you’re married, you have to “hold yourself out to be married”. For example: you call yourselves husband and wife, you file joint income tax returns, you use the same last name.
If you have a common law marriage, and you end your relationship, then you must get a divorce even though you never had a wedding.
If you’re going to argue to the IRS that you have a common law marriage, you need to know the facts. First, you need to know which states recognize common law marriage in the first place:
- Alabama
- Colorado
- District of Columbia
- Georgia (if created before January 1, 1997)
- Idaho (if created before January 1, 1996)
- Iowa
- Kansas
- Montana
- New Hampshire (but only for inheritance purposes, this won’t work on your tax return)
- New Mexico
- Ohio (if created before October 10, 1991)
- Oklahoma (but there’s conflict in the courts, marriages created before November 1, 1998 are recognized, common law marriages after that date may not be recognized)
- Pennsylavania (if created before January 1, 2005)
- Rhode Island
- South Carolina
- Texas
- Utah
If you live in one of these common law states, you will need to check with your state to find out the rules that make you qualify as married. This link gives you an outline of some of the state requirements. http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-30679.html
Common law marriage is not to be taken lightly; it’s marriage. Before you use the common law marriage argument with the IRS, make sure you’re serioius about being married.