Discussion:Thought they were married!!
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Discussion Forum Index --> Tax Questions --> Thought they were married!!
| 1 October 2008 | |
| Okay this one is weird.
Client calls and says that they were about to file for divorce when they found out their marriage license was NEVER filed in the courts (15 years ago). SO, she now wants to file Single in 2007. Now that she doesn't live with ex nor wants anything to do with his return. 2006 - File MFJ or MFS since they were together then???? BACKGROUND on her: She moved out from his house in Sept 07. They do have kids but lived together the last 6 months of the year so no HH. They own a house (she doesn't want any benefit from) but the title says "Mr. and Mrs. as a married couple" on the house. NORMALLY she would have to file MFS or MFJ until the divorce was final. But the was never a marriage license in the courts. Any help? | |
| 1 October 2008 | |
| What state do/did they reside in? The following states recognize common law marriages to some degree and their actions may constitute a legal marriage. The following states recognize common law marriages according to about.com: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and Washington, D.C.
If they moved to another state since the initial "marriage", as far as I can recall the marriage is still recognized. | |
| 1 October 2008 | |
| If it turns out they were never legally married, you'd have to file her single for any years not yet filed.
You could amend open years that have been filed. The joint returns were filed in good faith since they believed they were married, so there is no fraud involved, and as far as I know there is no legal requirement to file an amended federal return if you become aware of an error. | |
| 1 October 2008 | |
| Kiatd123: for what it's worth: what your client told you does not ring true to me. I am not saying she is a liar per se, just that my intuition tells me something is not right. If she & "hubby" went through the proper process to get a marriage license to begin with, then it's almost impossible that it was not "filed" with the "court". The issuing authority does that as a matter of course, day in and day out. It usually never leaves the same building. I would guess that she knew all these years that she was not officially married (I leave the question of legally married to a lawyer in your state or a gander at your state's code.) | |
| 1 October 2008 | |
| I had a similar one. I prepared MFJ returns for maybe 8 years. Then they had a conflict. Say they are getting divorced. I give them some divorce year heads-up regarding community property issues. The next Spring, time to file, no info. I ask for it. Then I'm told they were never married and one of them offers up "I guess you don't want to prepare my return." I say yes. Silently to myself: "Can't trust you. You're fired." -- Larry Hess, CPA | Albuquerque, NM | |
| 1 October 2008 | |
| If they took out a marriage license and had a ceremony, someone must have signed off on it. Before I proclaimed them never married, I would do some more due diligence research. In my state, California, a regular marriage license issue by one county can be used anywhere in the state. I don't know about yours. If they got the license in County A and were married in County B (in California) the license is filed back in County A. Have they looked in all the right places? | |
| 2 October 2008 | |
| Who cares about a marriage license? All of my foreign clients who file in USA as married never received a license in this country. | |
Corptaxhelp (talk|edits) said: | October 2, 2008 |
| This happened to a cousin of mine. She got married (1983ish). Eight years later, they filed for divorce. They had a marriage license but it was never properly recorded by the county courthouse. It was a paperwork mistake by the county clerk, not anything they did. Everything pointed to being married except a piece of microfilm at the courthouse.
Their attorney (it was a 'friendly' divorce) and former judge asked them this question: Is it easier to prove the marriage existed eight years ago and get a proper divorce now or do you want to have the marriage issue pop up randomly (and probably at the worse possible time) over the course of the rest of your life. They made the effort to explain the situation to the court and got a judge to retroactively record their marriage certificate then, in the same proceeding, dissolve the marriage. The judge commented it was the shortest union over which he had presided -- about five minutes. (After the judge recorded the marriage paperwork, her husband asked if she wanted to consummate the marriage for old time's sake. My cousin declined.) The other time this generally comes up is when one spouse dies and the pension or insurance company can't find any record of the marriage. Common sense and a simple affidavit is usually all that is needed to open the checkbook. I wouldn't file as single unless I had seen a divorce decree. Paperwork or not, they are married. If she is a good client, prepare two returns: MFS with your signature and a single for her to sign. Make sure to let her know in writing that MFS is the most accurate category. | |
| 2 October 2008 | |
| Have a similar marriage issue. Yesterday, we found out that two of our California clients that have been filing Married Joint for the last several years are not married. We will strongly advise them to amend or end our involvement in the case. | |
| October 2, 2008 | |
| There must be more to your story, Steve. It sounds like your clients' situation is not one of a county clerk's error. | |
RoyDaleOne (talk|edits) said: | 2 October 2008 |
| There is no common law marriage in CA? The land of palimony | |
| 3 October 2008 | |
| California and the IRS will recognize a common-law marriage which was valid where it was contracted. In other words, if the common-law marriage was valid in Texas prior to moving to California, then California and the IRS will both recognize the marriage. | |
| 3 October 2008 | |
| My sister had a difficult time tracking down record her marriage in CA as well. She eventually found it but it was filed with a different county than they thought it should be. | |
| 4 October 2008 | |
| I assumed they were married. They talked of being husband and wife, but my employee...a close friend of Mscash, BTW, tells me that they aren't actually married. I don't think I have had a "normal" case in 15 years. | |
| October 4, 2008 | |
| Steve, with so many couples who get hit with the "marriage penalty," why would your clients want to file jointly? Was it more beneficial for them to do so? I can certainly understand why you wouldn't want to have them as clients anymore given that they know they aren't married yet filed joint returns. | |
| 5 October 2008 | |
| You cannot amend MFJ to MFS. They need to research the issue in the State dockets. Until this information has been verified I would not file another return. It is possible that they have filed MFJ all these years to lower their tax liability, in which case, they may be looking at owing for at least the past 10 years with penalties and interest attached.
Did she change the name on her SS card when they married? Is she using his last name? Does the SS office require a certified copy of the marriage license before changing spouse's name? I hope that you verified the SS card names and numbers in the year the IRS began requiring this. good luck taxea | |
| 6 October 2008 | |
| I know of an instance where a couple wanted a divorce. The wife's attorney looked up the marriage records. There had been a wedding and a license. Apparently, the person who performed the wedding never sent the license to the state and it was not recorded.
Since there was no legal marriage, no divorce was needed. The couple went their separate ways. | |
Taxguy1024 (talk|edits) said: | 6 October 2008 |
| In Alabama, if their "intent" was to live together as man and wife and they acted as such, then even though they were never "officially" married, they would still be considered legally married and would have to obtain a divorce in order to be considered single again. | |
| 7 October 2008 | |
| Laura, please remind us of what year the IRS started requiring verification of SS card names and numbers (not being flippant, just don't know). Also, I doubt I'll get any responses to this, but I'd love to know how many preparers do this verification. | |
| 9 October 2008 | |
| Would anyone like to answer this? Not saying this is the way I do it, but when you have several years of filed tax returns, W-2s, 1099s, 1098, etc, what are the odds that that name and SS# do not match? Is this naive? | |
