Does filing taxes together indicate commonlaw marriage? 18 Answers as of June 13, 2011

If my girlfriend and I filed our taxes together in Kansas do we have to get a legal divorce or can we just go our separate ways?

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Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
While Texas recognizes Common Law Marriage, we do not recognize Common Law Divorce. So, the short answer is that IF you are common law married and want to move on as a single person, you have to get a divorce. Now for the twist, you may or may not be common law married for two reasons. (1) Common Law Marriage is as much a state of mind as it is a physical fact based event; and (2) there is a presumption for a 2 year statute of limitations for claim of a Common Law Marriage. Let's take the first reason: You are NOT common law married just because you live together. You are married under common law only if you (1) live together/co-habitate; (2) the co-habitation takes place in Texas; (3) you hold yourself out as married to the public (your describe an event that could be interpreted as meeting this requirement - enrolling a person on your insurance and telling your employer and the insurance company they are your spouse); and (4) BOTH of you had the intent to be married. This last element is the trap question that will make or break you if someone is trying to prove the existence of a common law marriage. How do you prove the other person intended to be married? You file for divorce, he or she does not contest it - that is one way, but what if he or she says they never intended to be married? To be more personal, did you intend to be married? Was there an "engagement"? The Texas Court's have ruled that when the parties are "engaged" they have an expressed intent to be married at some point in the future and therefore they are NOT common law married. In other words, the intent to be married must coincide with the co-habitation in Texas and not be an expressed future intent. While Texas recognizes "common law marriage" there is no such thing as common law divorce. The tax returns in Kansas, did you file "married filing jointly"? If so, you have held yourself out as married in Kansas. That is not enough, the question is, did you hold yourselves out as married in Texas? Did the two of you lived together in Texas? Did the two of you intend to be married in Texas? Assume you held yourself out as married (signed tax returns claiming married status) and you lived together in Texas. The only step missing is the "intent to be married". That one is a little quirky. There is evidence you intended to be married if you signed joint tax returns. That may or may not be enough in and by itself, proving intent is a difficult thing. So, do you have to file for a divorce . . . maybe. The more poignant question is why would you want to establish the marriage, or do you? Are there kids involved? If so, I would highly recommend the two of you get custody orders in place. This will save a lot of problems in the future. If you are getting orders for custody and support of the children, tossing in divorce language is simple, particularly if the two of you have divided your assets. Which brings me back to the point of "why would you want to prove the marriage?" If there is a marriage, then money earned during the marriage is community property (including retirement accounts or other deferred compensation). Is either party seeking to get half of the other's retirement? If so, then plead common law marriage and seek the divorce with division of the property. So, to answer your question, you must first ask if there is anything to gain by proving the marriage, and ask yourself if she will want to prove the marriage at some point. If so, then get the divorce over now. Otherwise, if neither one of you see a benefit to claiming the marriage, neither one of you ever filed a declaration of common law marriage, and there are no kids involved, then split the stuff, say goodbye and move on with your lives. BTW: There is a 2 year window for either of you to change your minds and claim there is a common law marriage, that window of time starts on the date of separation. So, keep something that shows the date the two of you separated such as a lease for at least 2 years in case you need it.
Answer Applies to: Texas
Replied: 6/13/2011
Law Office of Robert L. Fiedler
Law Office of Robert L. Fiedler | Robert L Fiedler
In Connecticut, there is no such thing as a common law marriage.
Answer Applies to: Connecticut
Replied: 6/13/2011
Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
If Kansas is the same as Alabama, maybe. Joint taxes is one factor in determining whether a common law marriage exists. The main factor is whether you held yourself out to others as husband and wife. Stay well.
Answer Applies to: Alabama
Replied: 6/9/2011
Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
There is no such thing as a common law marriage any longer in any state in the US. If you've never been married, you don't need a divorce, however, you may need another type of action to get some form of equitable or fair distribution of "marital property" when you separate. Speak to a local lawyer about the matter. Good luck.
Answer Applies to: New York
Replied: 6/9/2011
Steven D. Keist, Attorney at Law
Steven D. Keist, Attorney at Law | Steven D. Keist
Not in Arizona. Arizona does not recognize common law marriages unless you establish that type of marriage in a state that recognizes same.
Answer Applies to: Arizona
Replied: 6/9/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    Common law marriage is a tricky area of the law at best., In Ohio, we removed it from the statutes over 40 years ago. Please consult a Kansas attorney as to your rights and obligations.
    Answer Applies to: Ohio
    Replied: 6/9/2011
    Apple Law Firm PLLC
    Apple Law Firm PLLC | David Goldman
    There is no longer common law marriage in Florida.
    Answer Applies to: Florida
    Replied: 6/9/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    California does not recognize common law marriages. In California, you are unmarried. If you are living in Kansas, you should consult a Kansas attorney to determine whether or not filing income taxes together creates a common law marriage, and whether you have a common law marriage that would be recognized in Kansas - if so, get a Kansas divorce to untie the knot.
    Answer Applies to: California
    Replied: 6/8/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    In Minnesota , common law marriage is not recognized. In States where it is, it requires holding yourself out to others as a married couple in addition to cohabitation.
    Answer Applies to: Minnesota
    Replied: 6/8/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    In California, there is no common law marriage. You should check with the laws of Kansas to determine whether a common law marriage exists in Kansas.
    Answer Applies to: California
    Replied: 6/8/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    You need to look at the local statutes but I doubt that alone would make a common law marriage.
    Answer Applies to: Utah
    Replied: 6/8/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    The question is a bit of a nonsequitur - taxes are not an indicator/instrument of marriage. Presumably, you filed taxes CLAIMING to be married, and are wondering whether you have a common law marriage under State law. While you should ask that question of a Kansas family law attorney, really, Kansas IS a common law marriage State, so if you fulfill the legal test, you probably are married under Kansas law, and must divorce to change that status.
    Answer Applies to: Nevada
    Replied: 6/8/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Not necessarily. There is no such thing as a common law divorce, so if you do have a common law marriage, you have to go through the judicial process to end that marriage. The problem is that there are no simple rules to decide if you do or do not have a common law marriage; it is primarily a question of intent (i.e. did you and she intend to be husband and wife) and how the actual facts of daily living support or refute that intent. Basically, the only way you can ever know for sure whether there is a common law marriage is for a court to rule on the facts and enter an order saying yes or no. Colorado and Kansas both recognize common law marriage, if the facts support it. The first & maybe most important question is whether you and your girlfriend both believe the same thing as to what each of you intended. You should both probably discuss things in more detail with an attorney and then decide whether you both agree about your status before actually filing for a divorce. If you both agree that there is no intended common law marriage, you would be well advised to put that into some form of verifiable writing that confirms each of you had the benefit of legal counsel before signing.
    Answer Applies to: Colorado
    Replied: 6/8/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    If you filed taxes together there are only two possibilities: (1) You committed tax fraud with the IRS and both of you will owe penalties and could go to jail, or (2) If you are in a state that recognizes common law marriage (Kansas does), you are married and must get a divorce.
    Answer Applies to: Georgia
    Replied: 6/8/2011
    Vermeulen Law office P.A.
    Vermeulen Law office P.A. | Cynthia J.Vermeulen
    Most states do not recognize common law marriage anymore, including Minnesota. You should check with an attorney in your state of residence regarding whether this applies to you.
    Answer Applies to: Minnesota
    Replied: 6/8/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    If the two of you are living in Kansas, please consult with a Kansas attorney as to the laws in that state. If you are living in Washington (where this question was sent), there is no common law marriage here.
    Answer Applies to: Washington
    Replied: 6/8/2011
    Palomino Law Firm, P.C.
    Palomino Law Firm, P.C. | Debra Palomino
    Arizona does not recognize common law marriages. Most, if not all states, require a marriage license and a ceremony to be legally married, thus simply filing taxes does not make a marriage valid. You should seek advice whether Kansas recognizes common law marriages.
    Answer Applies to: Arizona
    Replied: 6/8/2011
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