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Common Spouse as a Dependent

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What Is Common Law Marriage?

To obtain a common law marriage, a couple generally must 1) intend to be married, 2) live together as a married couple, and 3) hold themselves out to the public as being married. The chief legal (i.e., nonreligious) difference between a common law marriage and a normal marriage is that in a common law marriage there is no marriage certificate or license--instead there is an implied or oral contract.

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.

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

If you have a common law spouse you can either file jointly or you can file separately. 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 Jessica Tam

, LegalMatch Legal Writer

Last Modified: 11-26-2013 12:40 PM PST

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