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Common Spouse as a Dependent

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What is a Common Law Marriage?

Although people often use the term incorrectly, to describe a couple who only lives together, common law marriage is a legal term describing a couple who have presented themselves as married to others, and whose relationship is organized like a marriage (and do, in most cases, actually live together).

The major difference between a common law marriage and a formal, or statutory, marriage is that the common law marriage is not formalized by a civil or religious ceremony and registered in the state in which the couple reside. This means that there is no marriage certificate or license.

In the states where common law marriage is legal, couples who are common law married have the same legal benefits and obligations as couples who are legally married.

Both parties to the marriage, as with statutory marriage, must still obey legal requirements to marry, including:

  • Both parties must freely consent to the marriage
  • Both parties must be of legal consent age or have parental consent
  • Both parties must be currently unmarried and of sound mind

Which States Use Common Law Marriage?

It is legal in: Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and also in the District of Columbia. In New Hampshire, common law marriage may be recognized following the death of one of the spouses, in determining the distribution of their estate.

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Can I Claim My Common Law Spouse as a Dependent on My Tax Return?

Yes, if a marriage is recognized in the state where the taxpayers currently live, or where the common law marriage was formed, they can file jointly.

In some cases you might be able to pay fewer taxes if you file as single and claim your partner as a dependent. If you and your partner meet the following requirements, you may be able to claim your partner as a dependent:

  • Support: You may be able to claim your partner as a dependent if you provided over half of his or her total support during the year. Support can mean food, housing, clothing, education, medical care, etc.
  • Income: Your partner’s gross income for the year must be less than $3,900 in 2012 (not including tax-exempt income, such as Social Security or welfare).
  • Residency: Your partner must be a U.S. resident or citizen that has lived at your residence all year.
  • Only Claim: You can only claim your partner as a dependent if no one else is claiming them. This means you cannot claim someone that has filed a joint tax return with someone else (if your partner is still legally married to another).

If you and your partner meet these requirements, it might be more beneficial to file as single rather than filing a joint tax return.

Do I Need an Attorney?

Figuring out if you are common law married by itself can be confusing and full of different legal implications. When you add taxes into the mix things can get complicated fast. In order to figure out what is best for you and to understand all the options available to you it is best to consult with a family law attorney or a tax attorney depending on your issue.

Photo of page author Katie Hamblen

, LegalMatch Legal Writer

Last Modified: 07-25-2018 06:07 PM PDT

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