How do I file after common law married and filing joint taxes last year, now separated this year

[dianachan960]

Last year 2016, me and my now ex filed taxes as married jointly. We weren't married in a court but found out if we filed taxes that way, we would be considered common-law married afterwards. We ended our relationship April 2016 and we've been living separately since then.That was the only time where we filed married. We also have one child together. And he also didn't work at all in 2016 but I did. How should we each file this year? This happened in Texas. And we never followed suit with an official marriage decree or anything of the sort.

[bwa · Accepted solution]

If you are not divorced on the last day of the tax year, your filing status choices are

• Married filing jointly,
• Married filing separately,
• Or, if you qualify, Head of Household.  You are considered unmarried for HOH if you lived apart from your spouse for the entire last 1/2 of the year, You provide more than 1/2 of the cost of maintaining a residence for you and a qualifying relative and you have a qualifying relative (such as your child) living with you for more than 1/2 of the year . If the child is your qualifying child, you do not need to claim them as a dependent.

You cannot file as a single person unless you meet the strict definition of "legally separated" under a court decree, and your state recognizes legal separation

(Note:  Once you are married, whether common law or otherwise, you are married until a court issues you a divorce.  There is common law marriage but no common law divorce.

Are you sure you are common law married?  Only a few states recognize, and merely filing a joint tax return isn't enough in any state.)

[dianachan960]

I know Texas recognizes common law marriage. But now I'm not so sure if our "marriage" is legit since it was just the taxes filed together.

[fanfare]

You are not married unless you put forward publicly that you are married. That is, present yourself to friends, family, business activities, etc as husband and wife.

[dianachan960]

Even if we did taxes? Ok we didn't really do that. I always just referred to him as my boyfriend.

[fanfare]

Then you're not married. Congratulations!

[dianachan960]

That's a weight off my mind! Thank you! (*^o^*)

[bwa]

And, if your not married, the two of you need to file amended returns, changing the married filing joint return to two single returns.

[vcarreon0]

so what if i'm common law married in texas (in 2017), but by the end of 2018 we may not be together, but i filed this year for the first time (me as HOH, my daughter, and him [who hasn't worked ever] all together. if we are not together next year, will i be filing as separated? what if i go back to living with my mother and take my daughter?

P.S. i go to college how will this affect my financial aid status?

[macuser_22]

Either you are legally married or you are not.   A common law marriage, if legal in your state, is as valid as any other marriage and can only be ended with a formal divorce.   If you are not married then you need to correct any prior tax returns filed as married because they would be fraudulent returns.

If you are legally married then you must file married until divorced.

You might need the services of a family law attorney to work this out.  Changing a prior joint return to single is not simple and usually requires a tax professional.    It cannot just be amended, it must be declared a voided improper return by the IRS.

[Macistevison]

So what happened?