What is the law regarding common law marriage and status to file taxes?
Common-law marriage is known as an "informal marriage," which can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas for an extended period of time (usually 3 years); and (3) representation to others that the parties are married. However, if a couple does not commence a proceeding to prove their relationship was a marriage within two years of the end of the relationship, by law the marriage never existed in the first place, and no agreement to be married was ever present. Couples living in an unmarried relationship can and often fall afoul of the Texas "common law" marriage. A nonmarital agreement can avoid this unexpected problem.
The following information is from the IRS website:
You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree. State law governs whether you are married or legally separated under a divorce or separate maintenance decree.
If you are considered married for the whole year, you and your spouse can file a joint return, or you can file separate returns.
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.
You are married and living together as husband and wife.
You are living together in a common law marriage that is recognized in the state where you now live or in the state where the common law marriage began.
You are married and living apart, but not legally separated under a decree of divorce or separate maintenance.
You are separated under an interlocutory (not final) decree of divorce. For purposes of filing a joint return, you are not considered divorced.
The following are TX statutes:
2.401 FAM. Proof of Informal Marriage
(a) In a judicial, administrative, or other proceeding, the marriage of
a man and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this
(2) the man and woman agreed to be married and after the agreement they
lived together in this state as husband and wife and there represented to
others that they were married.
(b) If a proceeding in which a marriage is to be proved as provided by
Subsection (a)(2) is not commenced before the second anniversary of the
date on which the parties separated and ceased living together, it is
rebuttably presumed that the parties did not enter into an agreement to
(c) A person under 18 years of age may not:
(1) be a party to an informal marriage; or
(2) execute a declaration of informal marriage under Section 2.402.
(d) A person may not be a party to an informal marriage or execute a
declaration of an informal marriage if the person is presently married to
a person who is not the other party to the informal marriage or
declaration of an informal marriage, as applicable