Could I file separately now that my ex and I are no longer together?

[cerv3030]

My ex and I split this year (2018). We were living together all of 2017. We are not legally married but have filed married joint throughout the years. We also have children/stepchildren together. Just curious. I don't want either one of us To get audit or have any problems. Thanks

[DianeW · Accepted solution]

I'm assuming you live in a state that recognizes common law marriages.  Common law is determined by your state, which is why I believe the IRS considered you as married.  The best answer to your question is that you file joint for 2017 for the most beneficial results if you can agree.

The future is the issue because unless you get a divorce you will be required to file as married filing separately unless you qualify to be "considered unmarried."  The rules for that are shown below as a plan for 2018.

• Tax Tips for Separated Couples (click this link to see the information)

Considered unmarried. (by clicking the links you will access the IRS site for more detail).

You are considered unmarried on the last day of the tax year if you meet all the following tests.

• You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.

• You paid more than half the cost of keeping up your home for the tax year.

• Your spouse didn’t live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences , later.

• Your home was the main home of your child, stepchild, or foster child for more than half the year. (SeeQualifying person , later, for rules applying to a child's birth, death, or temporary absence during the year.)

• You must be able to claim an exemption for the child. However, you meet this test if you can’t claim the exemption only because the noncustodial parent can claim the child using the rule described later in Special rule for divorced or separated parents (or parents who live apart) under Exemptions for Dependents. The general rules for claiming an exemption for a dependent are shown in Table 3.

[cerv3030]

Thank you for the information!

[DianeW]

@treyes1130 You're welcome.

[SweetieJean]

"My ex and I split this year (2018)"
 If ex agrees, you can still file Joint for 2017.  TX is a Community Property State, which complicates Filing Separately  Also see:
<a rel="nofollow" target="_blank" href="http://statelaws.findlaw.com/texas-law/common-law-marriage-in-texas.html">http://statelaws.findlaw.c...>

[SweetieJean]

Sorry but you were not allowed to file Joint all those years. Please see a local professional to straighten everything out.

[cerv3030]

He was audited once for using my daughter as a dependent. We had to go through the irs and go get it fixed by a professional. We were told even though we are not married legally that we were common laws. And we would have to file joint from now on. It was so confusing and frustrating. He's claiming our two children. And I am claiming my other two from a previous marriage

[SweetieJean]

Which state?

[cerv3030]

For Texas. It was a hassel. I had to get a tax advocate. It took us 4 months to receive our tax return

[Opus 17]

If you have a common law marriage then you are married for all legal purposes and you can't just "split up" -- you must get a legal divorce according to the laws of your state.  

Until then, you are married, and you must file as married.  Either married filing jointly (if you agree), or married filing separately, or head of household (if you claim a qualifying dependent and meet the other tests.)

[cerv3030]

Thank you. I was curious to know. Before we file separately. Appreciate the response.