Am I married ? If so, what do I need to do?

UPDATED: Oct 1, 2022

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Am I married ? If so, what do I need to do?

My kids father and I have filed married joint
tax returns in SC are we common law married?
We have been seperated for almost 7 yrs. I have
lived NH for 5 of those, however we still filed
married joint tax return for the 2018 tax year
with my main address in SC. I would like to
know if in SC or NH this is still considered
‘married’ and if so, do I need a divorce?


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Asked on May 9, 2019 under Family Law, New Hampshire


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

NH doeas not recognize common law marriage except for very limited inheitance purposes. Otherwise, to be married in NH, you must officially get married. SC will recognize common law marriage, but you must have fulfilled the requirements for common law marriage while living in SC, not elsewhere: you must have lived together in SC; both of you must at that time intended or wanted to be married to each other; and you must have "held yourself out publically"--that, told everyone you are married and referred to each other (at that time) as husband and wife (and not just as your child's other parent, as someone you live with, etc.). If you fulfilled those requirements while in SC, you are married and would need a divorce--any marriage, even a common law one, can only be ended by a formal divorce; but if you did not fulfull those requirements in SC, then since NH does not recognize common law marriage at all, you are not married and do not need a divorce.
Filing the joint tax returns would not make you married unless you fulfilled the other requirements above while living together in SC (assuming you and he did live together in SC). If you filed married tax returns while not married, not that you committed tax fraud.

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