# What constitutes a legal marriage (IRS) **URL:** \ **Category:** Factual Questions\ **Created:** [February 16, 2000, 7:10pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445 "2000-02-16T19:10:00Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![danielmellen](https://avatars.discourse-cdn.com/v4/letter/d/df705f/32.png) [@danielmellen](https://boards.straightdope.com/u/danielmellen)\ **Post date:** [February 16, 2000, 7:10pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/1 "2000-02-16T19:10:00Z")
I’m trying to resolve a disagreement in my office regarding taxes and legal marriages. Some people are saying that living with someone for 5+ years legally constitutes marriage (in the mind of the IRS) and that if you were audited and filled separately you could face consequences. Does anyone know anything on this matter? Thanks. ---
**Author:** ![Athena](https://avatars.discourse-cdn.com/v4/letter/a/35a633/32.png) [@Athena](https://boards.straightdope.com/u/Athena)\ **Post date:** [February 16, 2000, 7:38pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/2 "2000-02-16T19:38:00Z")
I believe this is the state’s jurisdiction, not the feds. I know here in Colorado that living together for a year constitutes legal marriage. ---
**Author:** ![Interrobang](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/interrobang/32/17463_2.png) [@Interrobang](https://boards.straightdope.com/u/Interrobang)\ **Post date:** [February 16, 2000, 8:05pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/3 "2000-02-16T20:05:00Z")
I don’t really know, but I imagine it depends on whether or not the state the couple lives in recognizes common-law marriage or not. As Athena mentions, I think the IRS would follow the state’s definition. Interesting wrinkle: when my father-in-law got remarried (Washington State), he and his wife went through a religious ceremony, but didn’t file state paperwork. They don’t consider themselves married when filing tax returns, etc. I have no idea whether or not this is legal – I rather suspect not – but since all the information I have on the legalities of their union is secondhand, I just don’t ask questions. * * * He thought he was the King of America, where they pour Coca-Cola just like vintage wine. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [February 16, 2000, 8:09pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/4 "2000-02-16T20:09:00Z")
What constitutes a legal marriage is indeed within the jurisdiction of each of the states. And no, just living with someone for **any** length of time, no matter how long, will not make a couple married in any state. The IRS will consider two people to be married if they are married according to the law of the state where they are living, and each state recognizes marriages in each other state (or other countries), so if you get validly married in one state, you will be considered validly married in all. (There are some interstate and international issues in divorce, particularly when one party did not participate). Surprisingly, this is the fourth time in a few weeks that I’ve run across the question on this board of what is required to have a valid marriage. The most relevant thread, which you should examine, is [http://www.straightdope.com/ubb/Forum3/HTML/005700.html](http://www.straightdope.com/ubb/Forum3/HTML/005700.html) , which examines what is required for a common-law marriage in Texas. (The others are [http://www.straightdope.com/ubb/Forum3/HTML/005700.html](http://www.straightdope.com/ubb/Forum3/HTML/005700.html) , discussing mail-order ministers, and [http://www.straightdope.com/ubb/Forum1/HTML/000462.html](http://www.straightdope.com/ubb/Forum1/HTML/000462.html) , the now-closed gay marriage thread.) Each state has specific laws as to what is required to become married. In addition to marriage license requirements, most states require that a couple be married in a ceremony before a qualifing religious or civil official (for instance, a minister, a rabbi, a judge, a mayor). A limited number of states recognize what are known as common-law marriages. These are derived from the English common law of long ago. In a common-law marriage jurisdiction, a couple is considered married when The other way is when they “agreed to be married and after the agreement they lived together as husband and wife and there represented to others that they were married.” (Taken from the Texas code cited in the Texas thread.) Note that for under these traditional requirements, for a valid common-law marriage to occur all three requirements must be met: (1) The parties agreed to be married; (2) the parties lived together as husband and wife; and (3) the parties represented to others that they were husband and wife. Under these requirements, if a couple living in a common-law marriage state each agreed that they wanted to be married (and not just live together in an umarried condition, or that they would get married at a later time), and did live together, and referred to themselves in public as a marred couple (rather than referring to themselves as boyfriend/girlfriend, fiancees, etc.), then that state would consider them married. (Note that when the news media refers to someone’s ‘common-law wife’, they are almost always referring to someone’s live in girlfriend, not an actual common-law wife. A common-law marriage is perfectly valid, is considered the same as a ceremonial marriage in all respects, and once it is entered into in a jurisdiction that recognizes it, it is valid in all other states.) So, no matter how long you live with someone, you will not be married unless you meet that state’s requrements to be married, and you never will meet any state’s requirements if you do not agree to be married and refer to youself publically as married. ---
**Author:** ![Poysyn](https://avatars.discourse-cdn.com/v4/letter/p/f4b2a3/32.png) [@Poysyn](https://boards.straightdope.com/u/Poysyn)\ **Post date:** [February 16, 2000, 8:48pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/5 "2000-02-16T20:48:00Z")
Here, you can file as common-law after living together for six months, but it’s up to you. ---
**Author:** ![Athena](https://avatars.discourse-cdn.com/v4/letter/a/35a633/32.png) [@Athena](https://boards.straightdope.com/u/Athena)\ **Post date:** [February 16, 2000, 8:54pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/6 "2000-02-16T20:54:00Z")
Billdo says: > [@](#): > > you never will meet any state’s requirements if you do not agree to be married and refer to youself publically as married. This may be fine and dandy in YOUR state. But I know here in Colorado that it doesn’t matter how much I protest, the state will decide I’m common law married after a year of shacking up. I just went over this with my financial advisor - by law, the state and the IRS can fine me for not filing my taxes as “married” if me and SO are cohabitating and presenting ourselves as a couple. ---
**Author:** ![system](https://global.discourse-cdn.com/straightdope/original/2X/e/e489c3b7d8fce19c4b355dd4fc3f88cc39c34b87.png) [@system](https://boards.straightdope.com/u/system)\ **Post date:** [February 16, 2000, 9:36pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/7 "2000-02-16T21:36:00Z")
> [@](#): > > Originally posted by Athena: > \*\*Billdo says: > This may be fine and dandy in YOUR state. But I know here in Colorado that it doesn’t matter how much I protest, the state will decide I’m common law married after a year of shacking up. I just went over this with my financial advisor - by law, the state and the IRS can fine me for not filing my taxes as “married” if me and SO are cohabitating and presenting ourselves as a couple. \*\* Athena, your financial advisor is flat-out wrong. I hope he’s better at doing your taxes than he is at providing legal advice regarding your marital status. In Colorado, it doesn’t matter HOW LONG you live together – that’s not determinative, it merely provides some proof. The Colorado Supreme Court says this: > [@](#): > > A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship. . . . In this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding. > > The two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife. Specific behavior that may be considered includes maintenance of joint banking and credit accounts; purchase and joint ownership of property; the use of the man’s surname by the woman; the use of the man’s surname by children born to the parties; and the filing of joint tax returns. See Mills, Common Law Marriage in Colorado, 16 Colo. Law. 252, 257 (1987). However, there is no single form that any such evidence must take. Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred. - PEOPLE v. Emilio J. LUCERO\* (1987) 747 P.2d 660. A Colorado appellate court explained it this way: > [@](#): > > A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, as manifested by conduct that gives evidence of the mutual understanding and intent of the parties, followed by their mutual and open assumption of a marital relationship. People v. Lucero, 747 P.2d 660 (Colo. 1987). The mutual agreement to be husband and wife must exist in the present, since an agreement to marry in the future does not create a common law marriage. _CRANDELL v. RESLEY_ (1990) 804 P.2d 272. You are NOT married unless it is your JOINT intention to be so, and if you are “protesting” it sounds like it’s not. Presenting yourselves as a couple isn’t enough – presenting yourselves as a _married_ couple provides some evidence that that is your intent. ## -Melin Siamese attack puppet – California Still neglecting and overprotecting my children ---
**Author:** ![Athena](https://avatars.discourse-cdn.com/v4/letter/a/35a633/32.png) [@Athena](https://boards.straightdope.com/u/Athena)\ **Post date:** [February 16, 2000, 10:07pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/8 "2000-02-16T22:07:00Z")
Well, then, I stand corrected. Hmm… time to get a new financial advisor. Thanks Melin. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 16, 2000, 10:42pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/9 "2000-02-16T22:42:00Z")
::Ringing up one more satisfied customer, and scoring one more for the forces fighting ignorance!!:: 🙂 Thanks, Melin. 🙂 ---
**Author:** ![eggo](https://avatars.discourse-cdn.com/v4/letter/e/c4cdca/32.png) [@eggo](https://boards.straightdope.com/u/eggo)\ **Post date:** [February 17, 2000, 12:52am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/10 "2000-02-17T00:52:00Z")
Ok, but if i live (in Hawiaii) with my (male)roommate for however long is required for a common-law marrage, are WE considered married? that would be weird. eggo oh, i’m a guy btw. ---
**Author:** ![system](https://global.discourse-cdn.com/straightdope/original/2X/e/e489c3b7d8fce19c4b355dd4fc3f88cc39c34b87.png) [@system](https://boards.straightdope.com/u/system)\ **Post date:** [February 17, 2000, 1:43am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/11 "2000-02-17T01:43:00Z")
> [@](#): > > Originally posted by DSYoungEsq: > \*\*::Ringing up one more satisfied customer, and scoring one more for the forces fighting ignorance!!:: 🙂 > > Thanks, Melin. :)\*\* Yeah, but where do I send my bill?? 😉 > [@](#): > > Ok, but if i live (in Hawiaii) with my (male)roommate for however long is required for a common-law marrage, are WE considered married? that would be weird. > eggo > oh, i’m a guy btw. Sorry, as we know, in Hawaii marriage is defined as taking place between a man and a woman. . . . All the cohabiting and declaring yourselves marriage in the world wouldn’t help. (And I don’t know offhand whether Hawaii recognizes common law marriage; a lot of states don’t.) -Melin * * * Siamese attack puppet – California Still neglecting and overprotecting my children ---
**Author:** ![system](https://global.discourse-cdn.com/straightdope/original/2X/e/e489c3b7d8fce19c4b355dd4fc3f88cc39c34b87.png) [@system](https://boards.straightdope.com/u/system)\ **Post date:** [February 17, 2000, 1:46am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/12 "2000-02-17T01:46:00Z")
Incidentally, that Colorado appellate court case is one of the very few that I’ve read that discusses that bane of bar exam students – the Dead Man’s Statute. I’ll keep a note of it as a curiosity. -Melin ---
**Author:** ![WhiteNight](https://avatars.discourse-cdn.com/v4/letter/w/b38774/32.png) [@WhiteNight](https://boards.straightdope.com/u/WhiteNight)\ **Post date:** [February 17, 2000, 9:27am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/13 "2000-02-17T09:27:00Z")
I’ve been through this… My roommate, an ex, of mine from before we moved in together, is partly disabled and occasionally collects assistance depending on how bad it is at that time. An old doctor’s note referred to us as ‘girlfriend / boyfriend’, as in, “… is spending time with her boyfriend …”. This was used as evidence that we were common-law, and they tried to deny her full coverage, claiming her spouse should support her. We had to go around to friends and get people to write and sign letters saying that we aren’t a couple, or at least, don’t represent ourselves that way to the best of their knowledge, etc. We managed to convince them of this, finally, but it was a real pain. So, intent it required, but, it appears, only for one partner. This is so that a man can’t leave his partner who is dependant on him and get out of common-law obligation by claiming he isn’t married, if the woman claims otherwise. I assume it’d also work in reverse. This has interesting implications, where someone could find themselves ‘married’ to a harassing ex roommate until they proved otherwise. But, we were able to show enough evidence that they backed down before going to tribunal. So, you can be considered common-law after a certain period of time, and your intent/public representation is the important thing. I would assume that filing jointly would be ‘proof’ in the government (or like agency)'s eyes if you decided to claim otherwise in the future. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 17, 2000, 9:57pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-marriage-irs/7445/14 "2000-02-17T21:57:00Z")
> [@](#): > > Yeah, but where do I send my bill?? Just note it in your files as work done _pro bono publico_. 😉 Or send it to NanoByte. 😉