am I common law married?

[11andy11]

I leave in Texas and have been with the same woman for 14 years. We have lived together for about 12 years. We have had a joint bank account for several years and have filed joint tax returns with seperate last names for two years. We also have a 4 year old son. I own a business and some properties including the house we reside in and my name is the only name on those properties and business. I owned the opened the business about 14 years ago around the time we were starting to date. I purchased the home about 4 years later. We do own a vacation home jointly. I bought her an engagement ring about 4 years ago. She now says she does not want to get married. She has never used my last name or represented herself as being married to me and only wears the engagement ring in front of her family. I have recently supected her of cheating on me and am trying to find out if we need to actually get a divorce and what assests if any she would have claim to. After researching online her is what the Texas law says and aparently all three criteria must be present at the same time:



In Texas, to prove the existence of an informal marriage (more frequently called a common-law marriage) between a man and a woman, the proponent must establish by a preponderance of the evidence either (1) that a declaration of their marriage has been signed as provided by Family Code chapter 2, subchapter E, or (2) that the parties agreed to be married and thereafter lived together in Texas as husband and wife and represented to others in Texas that they were married.


So am I common law married? To me it does not seem so. Also if we are not common law married does she have any type of claim regarding my business and property due to the length of time together?

 

[mistoffolees]

I leave in Texas and have been with the same woman for 14 years. We have lived together for about 12 years. We have had a joint bank account for several years and have filed joint tax returns with seperate last names for two years. We also have a 4 year old son. I own a business and some properties including the house we reside in and my name is the only name on those properties and business. I owned the opened the business about 14 years ago around the time we were starting to date. I purchased the home about 4 years later. We do own a vacation home jointly. I bought her an engagement ring about 4 years ago. She now says she does not want to get married. She has never used my last name or represented herself as being married to me and only wears the engagement ring in front of her family. I have recently supected her of cheating on me and am trying to find out if we need to actually get a divorce and what assests if any she would have claim to. After researching online her is what the Texas law says and aparently all three criteria must be present at the same time:



In Texas, to prove the existence of an informal marriage (more frequently called a common-law marriage) between a man and a woman, the proponent must establish by a preponderance of the evidence either (1) that a declaration of their marriage has been signed as provided by Family Code chapter 2, subchapter E, or (2) that the parties agreed to be married and thereafter lived together in Texas as husband and wife and represented to others in Texas that they were married.


So am I common law married? To me it does not seem so. Also if we are not common law married does she have any type of claim regarding my business and property due to the length of time together?

You have the rules. You're asking us to determine a case without all the facts. As your quote says, it comes down to preponderance of the evidence. If more evidence says you're married, then you're married. If more evidence says you're not married, then you're not.

Keep in mind that if you are not common law married, you have a big problem - tax fraud.

 

[11andy11]

hmm interesting, did not even consider a possible tax fraud violation.

 

[11andy11]

well lets just say that the 2009 joint tax return (the first year that we filed jointly) is enough evidence for a court to determine that we are common law married. Does she have a right to properties or assests aquired before that date?

 

[LdiJ]

hmm interesting, did not even consider a possible tax fraud violation.

Those joint tax returns are a BIG sign of a common law marriage. You held yourself out to the federal government as married.

 

[11andy11]

so what would happen if we just continued to live together and for 2010 filed seperate returns after filing two years of joint status married returns?

 

[seniorjudge]

so what would happen if we just continued to live together and for 2010 filed seperate returns after filing two years of joint status married returns?

I'm fixing to go pick up the crystal ball this afternoon.

Stand by and I will post what happens in the future later on today.

 

[PQN]

Ldj - since it was only 2009 and 2010 returns, are they recent enough to file corrected returns? (just trying to learn)

 

[11andy11]

I'm fixing to go pick up the crystal ball this afternoon.

Stand by and I will post what happens in the future later on today.

thanks for that helpful information. Let me rephrase the question. If I have filed joint married returns for two years and then we begin to file seperate returns with martial status listed as single how does the irs view this and would that create a potential problem?

 

[mistoffolees]

well lets just say that the 2009 joint tax return (the first year that we filed jointly) is enough evidence for a court to determine that we are common law married. Does she have a right to properties or assests aquired before that date?

Tax returns alone may not be enough to prove it, but they go a long way.

If you ARE married, you need to file for divorce. You will each be entitled to 1/2 of marital property. Some of your property MAY BE separate property even if you are married. A brief discussion is here:
Property Division Texas - Houston, Dallas, Austin, Fort Worth

In any event, you really need an attorney.

 

[mistoffolees]

thanks for that helpful information. Let me rephrase the question. If I have filed joint married returns for two years and then we begin to file seperate returns with martial status listed as single how does the irs view this and would that create a potential problem?

If a court determines that you were not married in the years you filed a return and you file an amended return, you're likely to get away with 'no harm, no foul' as long as you pay any extra taxes, penalties, and interest. You may find yourself being audited, though.

But it's important to keep in mind that they're two different issues. Divorce court can not do anything about your taxes and the IRS can not tell you if you're married or not.

If it were me, I'd get a formal ruling (or, at least, a very strong opinion from an attorney) and then straighten out the IRS by filing amended returns.

 

[LdiJ]

Ldj - since it was only 2009 and 2010 returns, are they recent enough to file corrected returns? (just trying to learn)

Its too late to file amended returns. Joint returns cannot be changed to separate returns after 4/15 of the filing year.

If you are common law married, then the community assets are those that accrued during the marriage, including home equity that accrued during the marriage.

You can probably argue that you have not been married at common law for the entire 14 years, but I think that you are going to have a hard time not being considered as common law married for at least 1/1/2008, forward. (your last two returns were your 2008 and 2009 returns).

 

[Bali Hai]

thanks for that helpful information. Let me rephrase the question. If I have filed joint married returns for two years and then we begin to file seperate returns with martial status listed as single how does the irs view this and would that create a potential problem?

Get a lawyer and give her the boot NOW. Do not stay with her any longer. As time goes on, her position will only get stronger not only for a common law marriage but greater marital assets and possibility of alimony if it is ultimately determined that you are married.

As far as the IRS, if it were me, I would leave the tax returns filed as is until such time that the IRS challanged them or the judge ruled that you were in fact not married.

 

[LdiJ]

Get a lawyer and give her the boot NOW. Do not stay with her any longer. As time goes on, her position will only get stronger not only for a common law marriage but greater marital assets and possibility of alimony if it is ultimately determined that you are married.

As far as the IRS, if it were me, I would leave the tax returns filed as is until such time that the IRS challanged them or the judge ruled that you were in fact not married.

Again, its too late to change the tax returns. See my previous response.

 

[garrula lingua]

Whether someone is common-law married, in Texas, can be a squishy issue.

As Ldij pointed out, you, both, already stated you were married for the years 2008 through 2010 (by signing the joint tax return).

In Texas, if neither party files for a divorce within the two years following separation, then the court does not recognize a common-law marriage for divorce purposes.
If you two separate, and one of you files for divorce, then divorce it is - with the concurrent marital property division. However, the argument is on as to the length of the marriage - was it only from 2008 until 2010, or was it longer ?

One solution, OP, is to try to work out an agreement with the ex. Y'all have a 4 yr old son to raise together, and you'll have to show prior support for the son if she files for c/s, so come to an agreement as to how much you'll pay her each month.