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Opus 17 · ‎January 5, 2023

@Prisonwife wrote:

I believe you misunderstood, or perhaps I didn’t explain properly, my ex, we’ll call him K; he and I used to file MFJ (for nine years) and during 2020 we were still in contact and were debating on getting back together (for the third time *eyeroll*). That January (2020) K and I decided to go ahead and file a joint return again (which was the ninth and final year), but as that year progressed we split indefinitely, went no contact and somewhat simultaneously I then began a relationship with the man I’m with right now, T, who is the man who is incarcerated. They are two different people, and I do want to be married to T who is in prison right now and T and I did previously present ourselves as married in the free world prior to his incarceration for the two years prior. Now last year my current incarcerated partner, T, and I both filed single and the IRS recognized I was no longer with my ex, K, and everything processed as normal for my return for 2021 even though K and I never requested, or processed a divorce decree. Even though the federal government may have recognized our marriage (via tax status) we never filed the paperwork with the county, so the state doesn’t recognize the marriage, therefore no need to divorce. T and I have filed paperwork (notarized) with TDCJ for common law but everything I’ve read says it’s only valid within the TDCJ unless we take it to the county clerk and pay the fee.

as a side note, I found out from a mutual friend that K has in fact gone on to get legally married (the officiant, the certificate, wedding with 250 people etc) to another woman as of last November. By him certifying his marriage to whoever she is with the county, Texas did not stop him to tell him he couldn’t do that because he was married to me.

I am not a lawyer, but based on your facts,

1. You are legally married to K. You live in a common law state, you acted as if you were married, and you told other people (the IRS at least) that you were married. You never got a divorce from K, so you are still legally married to K.

2. Because you are still legally married to K, your 2021 return as "single" is incorrect, you need to file an amended return to change from single to married filing separately, unless you and K agree to file jointly.

3. Texas is also a community property state, so half your property belongs to K and half of K's property belongs to you. That affects how you and K must file your 2021 taxes.

4. You and K need to see a marital lawyer to find out how to get a legal divorce under Texas law. See for example this article,

https://seanlynchlaw.com/texas-common-law-marriage-and-divorce/

5. You can't be married to T no matter what you do, because you are still married to K.

6. "we never filed the paperwork with the county, so the state doesn’t recognize the marriage, therefore no need to divorce". This is incorrect. Making an official declaration of a common law marriage is useful in some circumstances but it is not required. If someone tries to say there never was a marriage, the declaration makes it easier to prove. But the declaration is not required. Texas code section 2.401a says,

PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1) a declaration of their marriage has been signed as provided by this subchapter; or

(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.2.htm

Now, section 2.401b says that if you never filed a declaration, and someone starts a judicial proceeding against you more than 2 years after you split, you have a rebuttable presumption that you were not married. That might mean that you can file a declaration with T and as long as it is more than 2 years after splitting from K, you are presumed to never have been married to K. But that's a problem because if you were never married to K, why did you file 9 or 10 years of joint tax returns?

7. "the IRS recognized I was no longer with my ex, K". Not relevant. The IRS does not check with the state or county when you change your filing status. Filing a single tax return does not make you single under Texas marital law. The IRS doesn't "accept" your marital status. The point is, if you told the IRS you were married, that is proof of "telling someone else" you are married. That's what Texas cares about.

8. "By him certifying his marriage to whoever she is with the county, Texas did not stop him to tell him he couldn’t do that because he was married to me." I am not a lawyer, but I believe K is technically a bigamist. Just because the state didn't know he was informally married to someone else, doesn't make the marriage valid. See again section 2.401a.

Bottom line is you have a huge problem either way. Either you are legally married to K (in which case they are a bigamist and you can't marry T) or you were never married to K, in which case you filed 9 years of false tax returns, and you might be liable for huge penalty payments if you collected any tax benefits (like EIC) based on being married.

You just can't say, I was married for 9 years but now I was never married. Either you were never married, or you were married and never got a divorce.

You need to see a real attorney in your state and determine what your marital status really is. Get a written opinion even if it costs more. Then take your case to a tax accountant (CPA or enrolled agent, not a storefront shop) and have them help you correct whatever needs correcting.