Do I file seperately from my common law spouse or do we have to file together?

Question

My boyfriend wants me to file as commonlaw. He is still married, but legally seperated. He has already filed his 2006. We had lived together all year. However he claimed seperated on his tax forms. So now it's my turn to file...do I claim commonlaw or single.

Answer 1

In Canada, the forum in which this question was posted, there is a marital status category called common law.

Canada Revenue Agency's conditions to be common law are:
********************
A common-law partner applies to a person who is not your spouse (see above), with whom you are living in a conjugal relationship, and to whom at least one of the following situations applies. He or she:

a) has been living with you in a conjugal relationship for at least 12 continuous months;

b) is the parent of your child by birth or adoption; or

c) has custody and control of your child (or had custody and control immediately before the child turned 19 years of age) and your child is wholly dependent on that person for support.

In addition, an individual immediately becomes your common-law partner if you previously lived together in a conjugal relationship for at least 12 continuous months and you have resumed living together in such a relationship
******************
So, if you meet the above conditions then you should file as common law, as should have your boyfriend. To do otherwise could result in reassessments and penalties should CRA determine that you filed as the wrong status and received a tax benefit from it.

And yes, you can still be legally married and seperated and be common law with someone else for income tax purposes.

If you file as commmon law you must include your boyfriends income, name and social insurance number on your return. As he filed as seperated you will likely receive an enquiry from CRA as to the discrepency, and if the change in status changes his refund / amount owing, a reassessment will be issued.

Hope that helps.

Answer 2

Based on the other 3 responses given so far, and assuming that you are in Canada, dove, the answer given by Ontario CGA is 100% correct.

Guaranteed!

One thing that ONT CGA didn't mention in his answer is this:

If you are in fact common law, you MUST file your tax return as common law and even if you don't have your boyfriend's SIN available, you should indicate this on your 2006 Tax Return and provide to CRA the details of the individual with whom you have been common law with, eg, date of birth, etc.

You must also provide details of his net income.

If you don't have this information, you should indicate on your tax return that the amounts have been estimated.

If your boyfriend filed as single and he gets reassessed, he may also be penalized for having not disclosed his correct marital status on his income tax return, which is indeed common law.

CGA is also right about future enquiries on the 2 tax returns, and not only that, the processing and/or refunds may be delayed pending a review of both of your income tax returns.

If your marital status changed during the year, you should have sent CRA an RC65 form, change of marital status. This form can be downloaded from CRA's website at:

http://www.cra-arc.gc.ca/E/pbg/tf/rc65/README.html

If you need further information on this matter, you can contact CRA general enquiries at 1-800-959-8281.

Hope this helps you.

Answer 3

Even if you live in a state that recognizes common law marriage, and meet all the other requirements, a person who is still legally married to someone else, even though legally separated, can't enter into a common law marriage with someone else. So you are NOT common law married. Living together doesn't make you common law married in any case, there are additional requirements.

So you would file as single. He would have filed as married filing separately, or head of household if he qualified including having a dependent child living with him. You are not allowed to file a joint return.

By the way, there isn't a filing status of "commonlaw" - that doesn't exist.

Answer 4

single, you're not married. In addition, if you were, your deduction or refund would be lower.