Common Law Marriage

Common law marriages are marriages between heterosexual spouses who are legally married under their state's common law rules. They do not have a legal marriage license and did not have a legal marriage ceremony. Simply, some states recognize spouses as married at common law when they live as husband and wives for a minimum number of years, as established by state law, consider themselves married, publicly claim to be husband and wife and file joint tax returns. In these states, common law spouses receive the same protections and rights under their state's divorce laws if they divorce.

State Laws

As of 2011, only about one dozen states still allow their residents to enter into common law marriages. Georgia, Idaho, Ohio and Pennsylvania abolished common law marriage rights but will still recognize common law marriages if entered into before the legislative abolishment. These states' tax laws allow taxpayers who entered into common law marriages to file their state taxes jointly. Common law spouses may also file their taxes jointly under the federal tax code.

Unmarried Taxpayers

For federal filing purposes, the Internal Revenue Service allows only married taxpayers to file their taxes jointly. Taxpayers who do not have marriage licenses can file their taxes jointly if they married in a state that recognized common law marriages or if they currently reside in a state that considers them husband and wife through the state's common law. However, the IRS does not allow same-sex spouses to file their taxes jointly, even if their state recognizes domestic partnerships or allows same-sex partners to enter into common law marriages.

Tax Return Forms

As long as common law spouses agree to file their taxes jointly, the IRS allows them to file their returns using a "married filing jointly" filing status, even when one spouse did not earn any taxable income during the tax year. Filing jointly allows taxpayers to take advantage of lower tax liabilities, even when they do not itemize their deductions and take the standard deduction. Taxpayers must use Form 1040 or 1040A if they have dependents. Married taxpayers without dependents can use the Form 1040EZ. Married taxpayers should check the box on Line 2 of their 1040 Form to choose the married filing jointly option.

Considerations

Since tax laws can frequently change, you should not use this information as a substitute for legal or tax advice. Seek advice through a certified accountant or tax attorney licensed to practice law in your jurisdiction.