filed taxes jointly when unmarried?

Hi. My parents have filed jointly the taxes in the past even though they are not married. My mother does not make any income. My parents have lived for several years as a cohabitating couple in California. Was the taxes done correctly? Or should,my father amend and claim my mother as dependent or him as head of household? What IRS form should I use to make the change? Thank you.

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  • 10 years ago
    Favorite Answer

    Good news: the IRS treats "common law" marriages the same as "official" marriages. The IRS does not however define common law marriage and instead refers to the state law. So, if your parents are considered to be in a "common law marriage" by state law - they are fine with the IRS.

    Bad news: California, as far as I know, does not recognize common law marriage.

    More good news: The IRS offers a loophole. If your parents once upon a time initiated their common law marriage in a state where it was recognized, they would be considered legally married by the IRS, even while living in California. The way it works here in Texas is: if a couple checks into a Texas hotel as husband and wife and hold themselves out as married during that stay - their common law marriage would be generally recognized by Texas law. From now on, anywhere they live they are married for the IRS purposes. Maybe your parents could qualify using this loophole.

    If however they are positive that they never "initiated" such common law marriage in one of the states where it is recognized - then they may indeed have to change their filing status, using IRS Form 1040X, Amended Tax Return: http://apps.irs.gov/pub/irs-pdf/f1040x.pdf.

    Michael Plaks, EA, Houston TX

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  • Judy
    Lv 7
    10 years ago

    If they aren't married and are filing a joint return, it's tax fraud.

    A common law marriage is a valid marriage for tax purposes, but CA does not recognize common law marriages - most states don't any more. If your parents contracted a common law marriage somewhere that it was recognized as legal at the time, they'd be grandfathered, and OK to file joint. But common law marriage requires a lot more than just living together for some period of time.

    Assuming they are not married, yes your father should amend. He could probably claim your mom as a dependent for years when she wasn't working. He couldn't claim head of household based on claiming your mom, but if he's your biological father he could for years when he claimed you.

    The IRS form for amendments is 1040X. There's a place on the form to explain why the change is being made.

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  • Anonymous
    4 years ago

    I don't think they could file married filing jointly if they were not legally married... that doesn't sound right. Since they have 2 kids, I would let each use a dependant, and whoever makes more money, claim head of household. Then the other file single. The can each use 1 child as a dependant and they will each receive EIC, if they made under the limit for 1 child. If they did, I would say they should receive about 2,500 each, considering they have no other deductions (tuition, mortgage interest, student loan interest, donations, etc.).

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  • 10 years ago

    First of all, a spouse can never be claim as dependent. According to IRS, only married couple can claim joint return.

    Based on your issue, if your parents are not legally married, so your father can claim your mother as dependent, only if they live together for the entire year and meet the support test.

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  • I have been preparing taxes for 16 years. Based on my experience there are a couple of scenarios you may want to think about before choosing a direction to take.

    1. If your father's income is over $16,000 then filing as joint with your mother is probably the best way to file because of the amount of deduction for joint being higher than filing as head of household. If he makes less, than it probably doesn't matter which filing type he chooses.

    2. The IRS would probably have your father file as head of household and put your mother as his dependent. To change the previously filed tax returns, he needs to file 1040X. I can do this for him if that's what he wants to do: www.ShopBAMM.com or businessandmoneymgmt@gmail.com.

    Personally, I would leave it as is because on paper, the IRS would not see any problem with the way he is filing. However, if your explanation in your question is given to the IRS, then they would probably recommend Option 2 as I've explained above after verifying dependency questions.

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  • Anonymous
    10 years ago

    No, the taxes were not done correctly. They need to refile all years.

    Note, your bright idea, dad as HOH and claim mom as a dependent only works if a) dad can claim a biological child to meet the requriement to claim a related dependent and b) if mom's income is less than $3650, he supports her etc.

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  • tro
    Lv 7
    10 years ago

    if they are registered with the Sec. of State in CAlif.as domestic couples they can file married yes

    if not your father has filed incorrectly for as many years

    and he would not have been able to claim her for some of those years as a dependent, the laws for a qualifying relative have not been in effect that many years

    any changes that need to be made would be 1040X

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  • 10 years ago

    If you are not married, it is not legal to file as such. Your father should amend to HoH and claim your mom if he supports her.

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