Do You Have to Be Legally Married to File Married Status for Income Taxes?

by Beverly Bird

    The rules regarding marriage are some of the more complex in the Internal Revenue Code. You have to be legally married to file a joint married return, but beyond that, the issue isn't clear cut. "Legally married" has a lot of different nuances and it doesn't just involve two people living together who have officially tied the knot. The Internal Revenue Service also bars some legally married couples from filing together.

    Considered Married

    You can file a joint married return if you're legally married on December 31. It doesn't matter if you and your spouse no longer live under the same roof, provided you're not separated or divorced by court order. You can establish two separate residences and still file a joint return. You're also married for tax purposes if your spouse dies during the year. You can file a joint return with him, but only for the tax year in which he died.

    Considered Unmarried

    In some cases, you can be legally married but considered unmarried for tax purposes. This can be advantageous if you want to qualify for head of household filing status, which offers a better standard deduction than if you file a separate married or single return. You're considered unmarried – even if you're still legally married – if you and your spouse stopped living together no later than June 30. You must also have paid more than half the expenses associated with maintaining your home for the year, and a child who qualifies as your dependent must have lived with you for at least half the year.

    Common-Law Marriages

    The IRS recognizes common-law marriages as legal marriages. A common-law marriage exists if you and your partner live together as husband and wife, but there's a fine line between a common-law marriage and just living together. A common-law marriage involves a mutual agreement that you're married, as well as holding yourself out to society as a husband and wife. Nine states and the District of Columbia recognize these marriages, including Alabama, Kansas, South Carolina, Montana, Texas, Oklahoma, Iowa, Rhode Island and Colorado. An additional four states – Idaho, Oklahoma, Ohio and Georgia – recognize common-law marriages if they began before 1998, and Pennsylvania recognizes such marriages entered into before 2005. If you have a valid common-law marriage, you can file a federal joint married return.

    Same-Sex Marriages

    Federal law doesn't recognize same-sex marriages, so even if you're legally married to a same-sex spouse, you can't file a joint married return. The IRS can't accommodate a union that federal law doesn't acknowledge. If you have a child together, the dependent deduction goes to the spouse with the highest adjusted gross income – you can't both claim the same child on your separate returns. You can sometimes file a joint married state return if same-sex marriages are legal in your state, however. Connecticut, Massachusetts, Vermont and Iowa allow joint married returns for same-sex couples, and New York, New Jersey, California, Oregon and the District of Columbia allow partners in civil unions or registered domestic partnerships to file joint returns.

    Photo Credits

    • younger woman and older man image by studio vision1 from Fotolia.com

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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