Unmarried couple wanting to file MFJ

[ATSMAN]

We had a client who wanted to claim her boyfriend because he lived with her all year and had no income. So we put him on the return. Two months later she called and wanted to know if because we put him on her return, were they now married? He wanted to leave her and she had told him they were now married. We told her no, but that one of our tax preparers was a licensed minister and could marry them, but only after counseling.

Did you put the boyfriend as a spouse or as a dependent? Last year I ran into two returns where the taxpayer claimed their girlfriend as a dependent because there was no income and taxpayer provided food and shelter among other things!

[MAMalody]

From Pub 17
Considered married. You are considered
married for the whole year if, on the last day of
your tax year, you and your spouse meet any
one of the following tests.
1. You are married and living together.
2. You are living together in a common law
marriage recognized in the state where
you now live or in the state where the common
law marriage began.
3. You are married and living apart, but not
legally separated under a decree of divorce
or separate maintenance.
4. You are separated under an interlocutory
(not final) decree of divorce.

What does the law require for a common law marriage in Colorado?

A couple does not need to obtain a marriage license or participate in a wedding ceremony to
have a common law marriage; however, the couple must be one man and one woman and
each party must be at least eighteen years old. Furthermore, the couple must:

Mutually consent or agree to live as husband and wife; and

Mutually and openly assume a marital relationship.

Therefore, the couple must be adults, must agree that the marriage exists, and must behave
in public as a married couple. A court may consider the conduct of the couple and the
duration and nature of their relationship to verify the existence of an agreement between
them. Living together for a long period of time may help to demonstrate the couple's agreement
to be married, but the law does not require a specific
time period.

[ToledoEd]

He was listed as unrelated dependent. 12 months in home and no income.

[spanel]

Did you put the boyfriend as a spouse or as a dependent? Last year I ran into two returns where the taxpayer claimed their girlfriend as a dependent because there was no income and taxpayer provided food and shelter among other things!

There is nothing wrong with that as long as 12 months in home and income less than the exemption amount.

Chris

[Nashville]

Yes but Unfair

Only if the resident state recognizes common law marriage.

Atsman is absolutely correct, as I've been down this road in Georgia (common law) versus Tennessee (no common law). They have statutory right to do this without any moral influence which could possibly come from the tax preparer. Tax law is not necessarily moral or immoral -- it is simply what it is.

But this is one of the things that is unfair. If the same couple comes in your office and indicates a desire to file two returns as single people, you would probably do so, even in a common law state. All they have to do is tell you they're trying living together to see if their relationship is going to work out. I would accommodate them under these circumstances.

But the same couple could go to another preparer and tell them they're living together in Georgia and want to file as a married couple. Again, the couples wishes are accommodated under this story.

Here is what is unfair. This couple actually has the option of filing single or married. Married couples have only the option of filing MFJ or MFS. Even gay couples who marry relinquish their option of filing single. The status of simply living together should not blatantly endow them with this economic option. Not fair to those of us who are married, but don't know what to do about it.

[taxea]

You CAN'T be serious!

Do you know what the "M" in MFJ stands for?

Yep, I looked it up...if they started in a common law state they can file MFJ even if they move to a non common law state later.

As for not in a common law state they can't MFJ just because they want to they have to follow IRS rules and each file S. Additionally if they are living together in a committed relationship and have kids neither can file HOH.