Texas Informal Marriage and the IRS: Filing Status, Joint Liability, and Getting Out

Plenty of Texans live together for years, call each other husband and wife, and never get a license. Some of them are legally married. Texas recognizes informal marriage, often called common-law marriage, and when Texas says you are married, the IRS says so too.

That has real consequences. It decides whether you can file as single or head of household, whether you are exposed to joint and several liability on a joint return, and whether your partner's income is community property. It also means the relationship does not end just because one of you moves out.

How Texas defines an informal marriage

Texas Family Code section 2.401 provides two ways to prove an informal marriage. The first is a signed declaration of informal marriage registered with the county clerk. The second is proof that the couple agreed to be married, then lived together in Texas as spouses, and represented to others that they were married. All three elements are required on that second route.

There are guardrails. A person under 18 cannot enter an informal marriage. A person already married to someone else cannot enter one. And if a proceeding to prove an informal marriage under the agreement route is not started before the second anniversary of the date the couple separated and stopped living together, the statute creates a rebuttable presumption that there was never an agreement to be married.

These are Texas law questions, and they are fact intensive. Whether a particular couple is informally married is something to confirm with a Texas family law attorney. What I can tell you is what happens on the federal side once the answer is yes.

The IRS follows state law

Treas. Reg. 301.7701-18 defines marriage for federal tax purposes. A marriage is recognized for federal tax purposes if the state where the marriage was entered into recognizes it, regardless of where the couple lives now. IRS Publication 501 reflects the same principle for common-law marriages: you are considered married if you live together in a common-law marriage recognized in the state where you now live or the state where it began.

So a couple informally married in Texas is married for federal tax purposes, even after moving to a state that does not recognize informal marriage. The regulation also makes clear that registered domestic partnerships and civil unions are not marriages for federal tax purposes. Informal marriage is a marriage. Those relationships are not.

Filing status: single is wrong if you are married

Married people file jointly or married filing separately. The only escape is the considered unmarried rule for head of household, which requires living apart from your spouse for the last six months of the year, paying more than half the cost of keeping up a home, and having a qualifying child living there. IRS Publication 501 lays out those requirements.

An informally married couple that files as two single taxpayers is filing with the wrong status. That can understate tax, claim credits one spouse is not entitled to, or produce returns that do not match the community property rules. It rarely draws attention until something else does: an audit, a dispute, a divorce, a death, or one partner's IRS problem.

Fixing it means amended returns. Married filing jointly can replace separate returns within the time allowed by IRC 6013(b), but married filing separately generally cannot replace a joint return after the due date. Because the rules are one-directional, decide carefully which status to amend into.

Joint liability and community property come with the marriage

If informally married spouses file a joint return, each is jointly and severally liable for the full tax on it under IRC 6013(d)(3). That is the same rule that applies to ceremonially married couples. If your partner's business or side income goes unreported, the IRS can collect the whole balance from either of you.

Even without a joint return, Texas community property applies to informal marriages. Income each spouse earns during the marriage is generally community property. On separate returns, each spouse generally reports half of community income, using Form 8958 as described in my guide to married filing separately in Texas. And when only one spouse owes the IRS, the agency can reach community property the way I describe in how the IRS collects against Texas community property.

If you signed joint returns and your informal spouse created the tax problem, relief may be available. The community property and innocent spouse guide covers the options.

Ending an informal marriage requires a divorce

Here is the misunderstanding that causes the most damage. An informal marriage is a marriage. Moving out does not end it. Under Texas law, it ends by divorce or death, just like a ceremonial marriage. The two-year presumption in section 2.401 is an evidentiary rule about proving the marriage existed. It is not a do-it-yourself divorce.

On the federal side, your marital status is determined on the last day of the tax year. If you were still married on December 31, you file as married, even if you have not lived together in months. Separated spouses who meet the requirements can file head of household under the considered unmarried rule, and IRC 66(a) may let separated spouses report only their own earned income. Otherwise, the married rules apply.

This matters in a practical way. People who believe they are single sometimes remarry, or file as single for years, or ignore a former partner's tax debt. If a court later finds that an informal marriage existed, the tax returns for all of those years may have been filed under the wrong status, and community property rules may have applied to income both of you assumed was separate.

When an informal marriage turns up in an IRS case

Informal marriage comes up in IRS matters more often than people think. A revenue officer completing a collection information statement asks who lives in the household and whose income supports it. An examiner sees two people at one address claiming head of household. A surviving partner claims to be a surviving spouse. Each of those raises the same threshold question: was there a marriage?

When it matters, documentation decides it: a registered declaration, joint leases, insurance beneficiary designations, how the couple introduced each other, and prior tax filings. If the answer is unclear, resolve it before taking a position with the IRS. Taking a married position in one forum and an unmarried position in another is a fast way to lose credibility in both.

Texas makes marriage easy to enter and impossible to leave by just walking away. The IRS honors both halves of that rule. If your filing status or a partner's tax debt is in question, let's talk: 813-229-7100.