Violation of Local Law

[Snaggletooth]

There have been discussions on this board in the past about "Live-in" boyfriends, etc. and the practitioners' stance on related tax benefits such as dependents, filing status, etc.

Of course, we are not in a position to decide or impose moral issues, and our society simply is what it is, and our clients hand off the ball to us at tax time. However, in our discussions, I recall many of us do not give credence to the IRS caveat which says "the living arrangement cannot be in violation of local law." In fact, enforcement of "local law" is so lax that many of us do not even know what it is.

An article has just appeared in NATP publication where the IRS denied HH status, dependency deductions, child tax credit for an unmarried taxpayer who was supporting her "live-in" extended family. The reason? Alaska does not recognize common-law marriages.

Should we wish to observe this ruling in our tax practice, it might be helpful to know which states recognize the common-law, and which do not. My state, Tennessee, does not. But neighboring Georgia does, even to the extent that they enforce alimony.

Does anyone have a list of states, i.e. we can have a list of "common-law" states just like we have "community property" states. And in keeping with the "violation of local law", are there places where common-law is recognized town-to-town instead of at the state level?

[S T]

From Nolo Press

States which recognize common law marriage are:

Alabama
Colorado,
district of Coumbia
Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma
Pennsylvania (if created before 1/1/05)
Rhode Island
South Carolina
Texas
Utah

I will leave the towns/townships to someone else

However, not practicing law, but I believe it is also true that if a couple was practicing under either common law or community property law from another state and moved to one of the other states not practicing the same marital law, the current state they reside in compels that State to recognize the marriage valid under the laws of a sister state based on where the funds were moved from. (This probably has to do with estate law, not tax filings, but not sure)

Sandy

[solomon]

There might be different nuances among the states that permit common law marriages. In Texas they are called Informal Marriages.

It is accomplished in one of two ways:

1. File a Declaration of Informal Marriage or

2. Meet the following conditions:

A. Couple agrees they are married
B. They live together in Texas
C. They represent themselves as married to others

Regarding "violation of local law," the last list I had in which states still had laws against cohabiting when not married was: North Carolina, West Virginia, Florida, Michigan, Mississippi, and North Dakota.

Thus, the incident Snag mentions really had nothing to do with violation of local law by cohabiting. The IRS denied those benefits because of no common law marriage in AK - in that sense law was violated but not by merely living together.

[DonPriebe]

An article has just appeared in NATP publication where the IRS denied HH status, dependency deductions, child tax credit for an unmarried taxpayer who was supporting her "live-in" extended family. The reason? Alaska does not recognize common-law marriages.

This had nothing to do with violations of local laws.

The household consisted of a father with children and an unrelated woman. Although the man and woman had gone thru a religious ceremony, they were not legally married since no Alaskan license had been issued and Alaska does not recognize common law marriages. Thus they could not file MFJ, nor could the woman claim the children as dependents since they were qualifying children of their father.

Apparently she had not argued that Notice 2008-5 could be applied retroactively. If she had, she would have received the dependency of the children as qualifying relatives, but still not HoH or the child tax credit.

[erchess]

Full Faith and Credit

I have been told that the "Full Faith And Credit Clause" of the US Constitution is normally understood to require any State to recognize the validity of any marriage which is recognized as valid by any other State. I have also been told that this idea has never been tested. A South Carolina Lawyer for whom I have great respect declined to predict what would happen if the US Supreme Court as currently constituted were asked to decide whether SC had to recognize a marriage between two persons of the same sex that had been recognized by another State.She did confidently predict that SC would take its fight against such recognition to the Supreme Court if necessary.

Back before anyone I know of was thinking that any State would recognize a same sex marriage, I was told by the company that employed me that if anyone moved into our State from a State that recognized Common Law Marriage and had met the requirements in the former state, the Full Faith and Credit Clause required our state to recognize it and our State was going along happily. Therefore if any couple told me that they had a common law marriage that had been recognized under the laws of some previous State where they had lived I was to confidently treat them as married.

As a corollary to that rule, I was told to treat any couple that represented themselves as married as being actually married unless I saw both of them and could observe that they were of the same sex.

[DonPriebe]

Full Faith and Credit v. Defense of Marriage Act

I have been told that the "Full Faith And Credit Clause" of the US Constitution is normally understood to require any State to recognize the validity of any marriage which is recognized as valid by any other State. I have also been told that this idea has never been tested. A South Carolina Lawyer for whom I have great respect declined to predict what would happen if the US Supreme Court as currently constituted were asked to decide whether SC had to recognize a marriage between two persons of the same sex that had been recognized by another State.She did confidently predict that SC would take its fight against such recognition to the Supreme Court if necessary.

The Defense of Marriage Act (DOMA) says that your state does not have to recognize a same sex marriage validly entered into in another state, and that the Federal government MUST NOT recognize that marriage. It is amazing to me that this conflict has never been resolved by the Supreme Court.

What the courts have resolved in the past is that a state does not have to recognize an out-of-state valid marriage that would violate its own public policy in the areas of polygamy, miscegenation or consanguinity.

Wikipedia has an excellent summary of this topic at http://en.wikipedia.org/wiki/Defense_of_Marriage_Act

[JG EA]

States which recognize common law marriage are:

...
Sandy

Great list, thanks.

[Snaggletooth]

Thanks

2008-5 does appear to be at odds with this position taken by IRS.

Thanks to all for joining the discussion. The ongoing saga to determine just how ambiguous IRS continues to be regarding child dependency.

[ChEAr$]

Georgia

There have been discussions on this board in the past about "Live-in" boyfriends, etc. and the practitioners' stance on related tax benefits such as dependents, filing status, etc.

Of course, we are not in a position to decide or impose moral issues, and our society simply is what it is, and our clients hand off the ball to us at tax time. However, in our discussions, I recall many of us do not give credence to the IRS caveat which says "the living arrangement cannot be in violation of local law." In fact, enforcement of "local law" is so lax that many of us do not even know what it is.

An article has just appeared in NATP publication where the IRS denied HH status, dependency deductions, child tax credit for an unmarried taxpayer who was supporting her "live-in" extended family. The reason? Alaska does not recognize common-law marriages.

Should we wish to observe this ruling in our tax practice, it might be helpful to know which states recognize the common-law, and which do not. My state, Tennessee, does not. But neighboring Georgia does, even to the extent that they enforce alimony.

Does anyone have a list of states, i.e. we can have a list of "common-law" states just like we have "community property" states. And in keeping with the "violation of local law", are there places where common-law is recognized town-to-town instead of at the state level?

changed the law some years ago. Alabama recognizes common law; Georgia does
not, now. I see in another post the law was changed in 1997.

[Gretel]

Please correct me, if I am wrong. I thought "common law marriage" and "not violating local law" are not necessarily the same.

Wouldn't it need to say in the law that it is illegal to live together if not married? Have all states that don't recognize common law marriage this in their laws?

[solomon]

Please correct me, if I am wrong. I thought "common law marriage" and "not violating local law" are not necessarily the same.

Wouldn't it need to say in the law that it is illegal to live together if not married? Have all states that don't recognize common law marriage this in their laws?

Cohabiting in violation of local law states is listed in prior post. In other words, most all of the states that do not have common law marriage laws permit cohabitation by the unmarried.

[David1980]

But it doesn't seem the cohabitating is an issue here anyway.

[solomon]

But it doesn't seem the cohabitating is an issue here anyway.

You are correct - it isn't.

[ChEAr$]

In Georgia

back before the law was changed in 1997, common law marriages were recognized AND
there was (still is? I don't know) a law on the books making cohabitation a sin.... uh...
misdemeanor. illegal, anyway.

[GIMoe]

...Regarding "violation of local law," the last list I had in which states still had laws against cohabiting when not married was: North Carolina, West Virginia, Florida, Michigan, Mississippi, and North Dakota...

I do believe Virginia is also on the list that does not "allow" cohabitation.