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

You have to be married to file a joint return, but a lot of gray areas exist.

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

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.

You Must be Legally Married to file a Joint Tax Return

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.

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.

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. Fourteen states and the District of Columbia recognize these marriages, including Alabama (if created before January 1, 2017), Kansas, South Carolina, Montana, Texas, Oklahoma, Iowa, Rhode Island, Colorado, Idaho (if created before January 1, 1996), Oklahoma, Ohio (if created before October 10, 1991), Georgia (if created before January 1, 1997) and Pennsylvania (if created before January 1, 2005). If you have a valid common-law marriage, you are considered married for tax purposes.

Since the 2013 tax year, the IRS has recognized same-sex marriages entered into in states where such marriages are legal. If same-sex marriage is legal in your state, your same-sex marriage meets the IRS requirements for marriage. If a same-sex couple is married in a state in which the marriage was legal but later moves to a state that does not permit same-sex marriages, the IRS will still recognize the the marriage as valid and permit a joint return. All the rules and laws that apply to opposite sex couples apply to same-sex couples with a married filing status.

Legally Married During the 2018 Tax Year

You are considered married for tax purposes for the entire 2018 tax year if, as of December 31, 2018:

  • You are married and living with your spouse;
  • You live with your common-law spouse in a state where common-law marriages are recognized or in the state where the common-law marriage began; 
  • You are married and living apart but are not legally separated under a court decree; or
  • You are separated under a divorce decree that is not final.

Legally Married During the 2017 Tax Year

You are considered married for tax purposes for the entire 2017 tax year if, as of December 31, 2016:

  • You were married and living with your spouse;
  • You lived with your common-law spouse in a state where common-law marriages are recognized or in the state where the common-law marriage began; 
  • You were married and living apart but are not legally separated under a court decree; or
  • You were separated under a divorce decree that was not final.

Photo Credits

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

About the Author

Beverly Bird has been writing professionally for over 30 years. She specializes in personal finance and w, bankruptcy, and she writes as the tax expert for The Balance.


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