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Can we file a joint tax return if we’re not formally married?

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Dear Dollar Diva,
My boyfriend and I have lived together for 10 years. I earn over $40,000 a year, and he receives Social Security disability income.

Although we are not formally married, I filed a joint return last year and plan to do the same this year. Do I need to report his Social Security disability income on the joint return even though we are not technically married? Was I incorrect to file a joint return?
— Carol

Dear Carol,

Since you are not technically married, the only way you can file a joint tax return is if you are living together in a legal common law marriage. If that were the case, you would have to report all income, including his disability benefits.

The Diva thinks the likelihood of your being in a common law marriage is slim to none:

  • The marriage would have to have occurred in one of the states or districts that recognizes common law marriage: Alabama, Colorado, District of Columbia, Kansas, Idaho (if created before 1/96), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created before 10/91), Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah;
  • Your, and your boyfriend’s, intentions would have to be honorable (i.e. marriage-minded), and you would both have to present yourself to your friends and neighbors as the mister and his missus;
  • You would also have to assume the marital duties and obligations of husband and wife. Just about everyone who makes that kind of commitment goes to city hall and coughs up the cash for a marriage license. The Diva advises you to do the same if you want to file a joint tax return.

What to do if you’re not married

If you were not legally married, via common law or city hall, for the years you filed joint tax returns, you are going to have to amend those returns.

Don’t worry, people file amended returns all the time, and nothing bad happens to them.

Go to the IRS Web site and retrieve Form 1040X, Amended U.S. Individual Income Tax Return. You can type the information right on the form so you have a nice, neat return to submit to the IRS. You’ll also find the Instructions for Form 1040X on the Web if you need help in filling in the boxes.

Before you mail the 1040X, make sure you enclose a copy of every page of the original Form 1040 that changed because of the correction. Staple the copies to the 1040X so the IRS doesn’t lose them.

If you had to file a state tax return, you will probably have to amend that, too.

Can you claim your boyfriend as a dependent?

If you pay over 50 percent of the living expenses of someone you live with, and your relationship does not violate local law, you may be able to claim that person as a dependent on your tax return. Unfortunately, if sex-outside-of-marriage is illegal where you live, you can’t get the dependency exemption; even if the law is never enforced.

IRS Publication 501, Exemptions, Standard Deduction and Filing Information, spells out the rules for claiming a person who is not a relative as a dependent, and a tax adviser will help you determine if your situation qualifies.

A common law marriage is about as common as a ghost orchid, and no one should presume to have one without consulting with a knowledgeable lawyer.

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