Dick Adams <rdadams[at]smart.net> wrote: wrote:
- quote -

Excellent point. I hadn't thought of that.

- quote -

Yes, yes, I agree with that.

- quote -

Now that you mention it, that does ring a bell.

Stu

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"Stuart A. Bronstein" <spamtrap[at]lexregia.com> wrote:

- quote -

That exact scenario might make them married under Texas law,
but it would be a fraudulent return. In order to file a
joint return they must have been legally married on December
31.

--
Phil Marti
Clarksburg, MD

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"Phil Marti" <prm20871[at]verizon.net> wrote:
- quote -

Once they're married, they're married. It doesn't matter
where they move to. But they had to have at least driven
through one of the common law states and spent the night.

Stu

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Phil Marti wrote:
- quote -

My reply was limited to establishing a common law marriage.
The states I mentioned are the only ones where one can
establish such a marriage. Once the marriage is created
only a divorce can end it. In addition, each of the other
states will recognize that marriage.

--
Alan
http://taxtopics.net

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"Stuart A. Bronstein" <spamtrap[at]lexregia.com> wrote:
- quote -

It's 'the present intent to be married' that's a killer.

- quote -

Holding out is the equivalent of 'present intent', but it's
a matter of both parties holding out in the same time frame.
Signing a joint return would be 'holding out' in 2007. But
they would need witnesses for a 2006 'holding out'.

There was a case in Texas when I still had access to
Lexus/Nexus. A coupla lived together for eight years and
then she came into a million dollar plus inheritance and
took a walk. He filed for divorce and produced witnesses
who said he constantly refered to her as his wife as well
as hotel records where he signed in as Mr. & Mrs. Her
attorney produced her tax returns (single) and their leases
where the landlord noted 'an unmarried couple'. She won
because they never held out together.

Going back to the original point: Signing a 2006 tax return
in 2007, does not make you married in 2006.

- quote -

Ah, but! Marriages performed by a Bell Captain terminate
when you check out of the hotel.

Dick

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Dick Adams <rdadams[at]smart.net> wrote:

- quote -

The rule in Texas is that they need three things:

1. Cohabitation
2. Holding out as married
3. Present intent to be married.

The courts there have mostly written out the final
requirement, saying that if the couple hold themselves out
as married (to someone, it need not be to everyone) that is
evidence of their present intent to be married, and all the
evidence required.

- quote -

Exactly. There is also no common law divorce. That is to
say that if you become married under the common law, you
can't get divorced merely by moving out.

Stu

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"A.G. Kalman" <agkdisposable-mtm2[at]yahoo.com> wrote:

- quote -

The only common law state I've studied the law of is Texas.
Under their laws (not strictly common law - they've codified
it as "informal marriage") if the couple lives together
(there is no minimum time period), the simple act of filing
a joint return could cause them to be instantly married.

- quote -

Exactly.

Stu

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"A.G. Kalman" <agkdisposable-mtm2[at]yahoo.com> wrote:

- quote -

Are you sure of that? I seem to recall that if a couple
establishes a valid common-law marriage and then moves to
another state, the marriage is recognized even though they
couldn't create a common-law marriage in the new state.

--
Phil Marti
Clarksburg, MD

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"Stuart A. Bronstein" <spamtrap[at]lexregia.com> wrote

- quote -

Makes you wonder if uttering the word "Shamalatarama" in
your sleep three times makes you unmarried.

--
Paul Thomas, CPA
paulthomascpapc[at]bellsouth.net

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"Nan, EA in LA" <nanekl...[at]aol.com> wrote:
- quote -

head of > > household, resulting in lower taxes. But for
2005, he may > > not use the child to claim head-of-
household status because > > he and the child are not blood
related.
- quote -

he > > supported a child living in his household.
- quote -

And > > since the mother is not employed, and therefore
does not > > file income tax returns, no one can claim this
child as a > > dependent -- not even the person who provides
100 percent of > > the child's financial support.

- quote -

But with the new rules for Uniform Definition of Child for
tax year 2005+, if an unrelated child is a qualifying child
of another person, you can't claim him as your dependent,
even if he meets all 5 of the requirements.

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thomasvr1[at]gmail.com wrote:

- quote -

First off, they can't file a federal joint tax return unless
they are married. State law determines whether they are
married. I don't know what state they are in. In the few
states that still maintain common law marriage on their
books, it is not legal to file a joint tax return unless the
couple has a common law marriage. Merely filing a joint tax
return does not make you married. It is merely one fact in
a long list of facts and circumstances that determine
whether one has a common law marriage.

The following states are the only ones that have common law
marriage on the books:
Alabama, Colorado, Georgia (if created before 1/1/97), Idaho
(if created before 1/1/96), Iowa, Kansas, Montana, Ohio (if
created before 10/10/91), Oklahoma (possibly if created before
11/1/98), Pennsylvania (if created before 1/1/05), Rhode
Island, South Carolina, Texas, Utah and Washington, D.C.

If they are not residents of one of the above states, then
the only way they can be legally married is if the had a
valid marriage ceremony and the marriage was duly recorded.

--
Alan
http://taxtopics.net

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thomasvr1[at]gmail.com wrote:

- quote -

I was about to say that couldn't be the case

- quote -

Ah, must be one of those common-law marriage states. If two
people cohabit and tell someone (not necessary to be
everyone) that they are married, they become married.

Well, I suppose that would work.

Stu

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thomasvr1[at]gmail.com wrote:

- quote -

Alas H&R Block is giving legal opinions. LoL But why not, we
all do that from time to time. And many times our opinions
are as wrong as the opinion you report.

Here is what's wrong with that opinion. A common-law
marriage requires a 'present-tense' mutual agreement to be
married. When unmarried people file a joint return, it does
NOT necessarily make them married even in a common-law state.
The IRS went after a man in Utah over exactly what is being
proposed here and it was not over a lot of money.

Being shacked-up long-term in a common-law state also does
not necessarily make one married. You must have acted in a
manner consistent with being married and have witnesses to
your past actions.

Dick

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<bluewaterbear[at]sbcglobal.net> wrote:

- quote -

What you are overlooking is that with the mother in the
household, the child is her qualifying child, and hers
alone. The boyfriend cannot claim the child as a qualifying
relative dependent because the child is the qualifying child
of someone else. This holds true even if the mother doesn't
file and claim the exemption.

--
Phil Marti
Clarksburg, MD

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"A.G. Kalman" <agkdisposable-...[at]yahoo.com> wrote:
- quote -

Thank you for your reply. After explaining the details of
this situation to my local H&R block office, they determined
that the only way that her boyfriend could've claimed my son
is if they filed together as married filing joinly. In my
state it is legal to do so even if you are not married,
however after you do that you BECOME MARRIED and are
required to file as married from there on out. If they
filed as married, then the IRS would think that my son is
his step-son, thereby making him a qualifying child. It's a
pretty scummy move, which follows along the lines of most of
the things those two do.

Thanks again for your reply.

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thomas...[at]gmail.com wrote:

- quote -

The first of the five rules for claiming a dependent is:
RELATIVE or MEMBER OF THE HOUSEHOLD FOR ALL YEAR.
I don't remember that being repealed.
Therefore, an unrelated person can be claimed as a dependent
if the other 4 rules are met.

Nan, EA in LA

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Although your son does not qualify his mother's boyfriend to
file as head of household, since they are not related, he
may still be eligible to claim the child as a dependent.
Everyone seems to jump on the relationship (blood relative)
part of the test but over looks the member of household for
12 months part. If your son lived under the roof of your
ex's boyfriend for a full twelve months and can prove that
he provided more than half of your son's support, than yes,
he can claim him.

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thomasvr1[at]gmail.com wrote:

- quote -

Based on the facts you presented (lives with you 3 days a
week), I have assumed that the remaining time is spent
living with his mother. Your son is the qualifying child of
his mother. As such, the boyfriend can not claim the child.
Only the mother can claim the child unless she releases the
dependency exemption to you. She can use IRS Form 8332 to do
that. If the facts are different and the child does spend
more than 6 months living with you, then your son is your
qualifying child and you should file claiming all the tax
benefits inherent in having a qualifying child. If the
boyfriend already e-filed, you would have to file a paper
return.

As the qualifying child of the mother, the child is the
qualifying person for his mother to file as head of
household. The boyfriend can not use your son as his
qualifying person to file as head of household.

Relative to a taxpayer claiming a dependency exemption for a
totally unrelated individual: It is possible under the
following circumstances: The qualifying person can not be
the qualifying child for someone else. The qualifying
person must reside with the taxpayer for the whole year. The
qualifying person's taxable gross income must be less than
$3300. The taxpayer must provide more than half of the total
support for the qualifying person. In the addition, the
taxpayer can not be the dependent of another taxpayer.

Under the above scenario, it is possible that your son's
mother is a dependent of the boyfriend if he passes the
tests I mentioned in the previous paragraph. Even if he
passes the test, he would still be unable to claim her if
you and she are married and agree to file a joint return
that reflects a tax liability. She can not be a qualifying
person for purposes of the boyfriend filing as head of
household.

Whether or not you should call the IRS and report the
situation is an individual decision that you have to make. I
have no idea what type of relationship you have or care to
have with the child's mother.

--
Alan
http://taxtopics.net

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Here's the deal. My son's mother is on disability and does
not work or produce an income (although I do pay her child
support). Her boyfriend lives with her, in her house, and
he does work. He has no legal rights to my son at all. My
son lives with me 3 days a week. She told me that her
boyfriend claimed my son on his tax return for 2006. All
the info I can find at the IRS website says that since 2005,
a person cannot claim a child that is not their own, or you
have to be a blood relative, which he is not. I also found
info supporting that he cannot file as head of household
(posted below). My question is, how in the world could
someone legally claim a child that is not their own? If
they filed joinly would that make a difference? This
doesn't seem right, but apparently whoever did their taxes
for them let them do it. Should I call the IRS and report
it? Please help!

Info about Head of Household Status

Take the situation of an unmarried man living with his
unemployed girlfriend and her young child. The family of
three lives solely on his earned income.

In 2004, the man could claim his girlfriend and her child
both as his dependents and file his return as a head of
household, resulting in lower taxes. But for 2005, he may
not use the child to claim head-of- household status because
he and the child are not blood related.

Formerly, the primary test was the support test. The the
man was eligible to file as head-of-household because he
supported a child living in his household.

Now the primary test is the relationship test, and he would
fail that because he and the child are not related. And
since the mother is not employed, and therefore does not
file income tax returns, no one can claim this child as a
dependent -- not even the person who provides 100 percent of
the child's financial support.

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