Holly

[hahroot3]

What is the name of your state (only U.S. law)? Texas

I was essentially in a Common-Law marrige in Colorado and have 2 children with this man. In May of 2008, I moved with the children to Texas and have now been living here for over a year. Their father willingly allowed me to move. We did file joint tax returns while living in Colorado, but have filed single for the last 2 years. I am guessing that I still need to a divorce, but I am not sure where I need to file. We have never lived together in the state of Texas. Do I file in Texas or Colorado?

 

[TinkerBelleLuvr]

You are a resident of Texas, but I assume the X continues to live in Colorado. You really have a multiple state issue here. The children are residents of Texas - Texas would have jurisdiction over custody and child support. The actual divorce that doesn't cover these issues might have to be done in Colorado.

This is NOT a do-it-yourself project.

The problem lies that Texas does NOT have jurisdiction over your X who remains in Colorado. Now either party could allow the other state to have jurisdiction for the divorce. But whether Texas would allow Colorado to have jurisdiction over the children is a different matter.

 

[TinkerBelleLuvr]

Forgot to ask: did you file joint returns with the X in the past?

 

[TinkerBelleLuvr]

common law marriage in Colorado is valid for all purposes, the same as a ceremonial marriage. It can be terminated only by death or divorce. The common law elements of a valid marriage are that the couple (1) is free to contract a valid ceremonial marriage, i.e., they are not already married to someone else; (2) holds themselves out as husband and wife; (3) consents to the marriage; (4) cohabits; and (5) has the reputation in the community as being married. The single most important element under common law was the mutual consent of the couple presently to be husband and wife. All the rest was considered evidence of this consent or exchange of promises. The only time requirement necessary was time enough reasonably to establish these circumstances. When proof of common law marriage is required, such as by an insurance company, a signed affidavit can be presented. For a sample affidavit, click here.

http://www.ago.state.co.us/FAQ/CLM_FAQ.cfm.html

 

[hahroot3]

Yes we did file joint tax returns. Do I take my case to a lawyer here in Texas then or in Colorado? A lawyer I spoke with last year had told me to wait a year to file, which that time is now up. He also seemed to think that Colorado would likely not want the case and willingly allow the State of Texas to handle the child custody and support issues.

 

[TinkerBelleLuvr]

The issue lies in that Texas does NOT have jurisdiction over your STBX who resides in Colorado. Texas has jurisdiction over the children, yes.

If you X agrees to allow Texas to have jurisdiction, then yes, file in Texas.

 

[JETX]

I was essentially in a Common-Law marrige in Colorado

What does that mean?? There is no such thing as an 'essential' marriage. Either you are or your not.

"Colorado is one of about a dozen states remaining which recognizes a common law marriage, or a marriage without formal ceremonies. There is no hard and fast rule as to what constitutes a Colorado common law marriage, nor even one law which directly covers it. Rather, C.R.S. 14-2-104(3), part of the law which establishes the requirements for a Colorado marriage, simply states: "Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman."

It is up to the Colorado divorce Courts, with more than a hundred years of legal decisions to draw on, to determine whether Colorado will recognize that a common law marriage exists. The standard Colorado courts have outlined is that a common law marriage in Colorado requires that the couple:

1. Cohabitate,
2. Mutually agree to be married, and
3. Openly hold themselves out to the public as married.

Because proof can be complicated, unless both parties agree that they had a common law marriage in Colorado, they will inevitably need the assistance of a Colorado divorce or family law attorney who knows Colorado common law divorce issues."
CO Common Law Marriage | Colorado Divorce & Family Law Guide

Do I file in Texas or Colorado?

Based on the above, it appears that you will have first have to get with a Colorado based attorney who can review ALL of the facts and give his opinion as to whether you are, or are not, married. If your life-facts aren't clear as to your status, you might need to get a court order as to your marriage.

 

[hahroot3]

My understanding is that I can file here in Texas and he can either agree to have the case here or argue that it needs to take place in Colorado. I do not think that he will contest the issue. But I guess you never know. So I guess that I will begin the proceedings here and wait and see what he does. Thank you for you help.

 

[hahroot3]

We lived together in Colorado, bought and sold property together in Colorado, and filed joint tax returns in Colorado. We were engaged so I guess that the intent to be married is valid. However, we did not present each other as husband and wife. From what I have read, these things will constitute a common law marriage in both Texas and Colorado.

 

[hahroot3]

Okay thanks....that's what I needed to know.

 

[JETX]

Since you FILE IRS taxes together, you guys are basically MARRIED, k?

And of course, that is 110% CRAP!!!

There is NO state that recognizes two individuals who "FILE IRS taxes together" means that they are married.... especially "you GUYS".

 

[TinkerBelleLuvr]

The reason for my answer:

If they really weren't married, then they FRAUDULENTLY filed tax returns, no? They most like benefitted by having filed in such manner and would have to refile back, etc.

If she feels that they weren't married, then they'll have to deal with FRAUD and the IRS.

Of all scenarios, probably best to file for that divorce.

 

[JETX]

The reason for my answer:

If they really weren't married, then they FRAUDULENTLY filed tax returns, no? They most like benefitted by having filed in such manner and would have to refile back, etc.

So, who says that their IRS forms were correct?? Have you seen their forms?? Do you KNOW their status?? Of course, the answer to the latter two is NO.

If she feels that they weren't married, then they'll have to deal with FRAUD and the IRS.

First, you don't KNOW that (you are guessing).
Second, the IRS filing doesn't establish a marriage.

Please provide a link to ANY state law that says "IF you file your federal taxes saying you are married, you ARE married in this state".

The fact that they filed as married (IF they did), that could be used to support the claim that they were presenting themselves as married... but it, by itself, does NOT prove that a marriage exists.

 

[TinkerBelleLuvr]

Jetx, it is correct in your way of think, but, if the OP wants to now back pedal and say that they really weren't married, then she must be prepared to refile those tax returns (and associated penalties and interest) to remove the fraud.

The divorce would be much more easily done than the undoing of the tax returns.

 

[LdiJ]

So, who says that their IRS forms were correct?? Have you seen their forms?? Do you KNOW their status?? Of course, the answer to the latter two is NO.


First, you don't KNOW that (you are guessing).
Second, the IRS filing doesn't establish a marriage.

Please provide a link to ANY state law that says "IF you file your federal taxes saying you are married, you ARE married in this state".

The fact that they filed as married (IF they did), that could be used to support the claim that they were presenting themselves as married... but it, by itself, does NOT prove that a marriage exists.

The IRS recognizes common law marriages for states that recognize common law marriages.

In some common law states one of the elements of demonstrating an "intent to be married" is filing a joint tax return.