Common Law Marriage in South Carolina

Today we hear from TR in South Carolina who’s apprehensive, “I just found out that the Common Law Marriage Law has changed in South Carolina as of January 1, 2006. We have been filing “Married” for the 2005/2006 tax seasons. Since the law has changed and requires a marriage license… should I file “Single” and will I get in trouble for this? We have no plans on “really” getting married within the next year. “

Dear Toshiko,

Well, you have a break.

According to the legislation I found, the law does not seem to affect anyone with a provable common-law-marriage that was in effect as of 12/31/05.
http://scstatehouse.net/sess116_2005-2006/bills/3588.htm

“Section 20-1-110. A common law marriage in this State may not be recognized on and after January 1, 2006, unless it is established by sufficient proof in a court of competent jurisdiction that the common law marriage existed as of December 31, 2005.”

That “unless” says to me that the State of South Carolina is grandfathering existing common-law relationships.

You may want to verify this with a local attorney. And consider getting a state court to recognize your pre-existing common law marriage.

As long as SC recognizes your marriage, IRS does too. http://www.irs.gov/publications/p501/ar02.html#d0e1411

In fact, one of the provisions for IRS to recognize your marriage is:
You are living together in a common law marriage that is recognized in the state where you now live or in the state where the common law marriage began.

So, if your attorney agrees with my interpretation, and the court does, too, you should have no problems continuing to file a married, joint return.

And remember, you can find answers to all kinds of questions about common law marriages and all kinds of other tax issues, free. Where? Where else? At TaxMama.com

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