Articles Posted in Marriage

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In the past few years internet dating and the concept of online love connections has exploded. It has become increasingly more socially acceptable to find a mate online than when the concept first arose with the invention of the internet. Recently a new trend has emerged: internet marriages.

The idea that a marriage can occur without the physical presence of one spouse is not so new and trendy. A proxy marriage is a legal ceremony which occurs when one (or both) spouses are not physically present. If both spouses are not present, the wedding is called a “double proxy wedding”. Usually a “stand in” will be present in the absent spouse’s place. Generally, proxy marriages are not legally recognized throughout the United States except in limited circumstances such as for military personnel. In Del Mar, the courts recognize proxy marriage as valid in certain circumstances. California is in the minority of states in this respect.

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While proxy marriages were traditionally entered into mainly by active duty military, they are now being used between people who met online and may have never seen each other in person. Weddings are literally being conducted over the internet through services such as Skype and Google Hangout. The purpose of requiring both parties to be present and to conduct a ceremony in the presence of a witness is to ensure the voluntariness of the marriage. The main concerns of the states which do not allow proxy marriages include: facilitation of fraud by those attempting to gain U.S. citizenship and the possibility that they will be used by human traffickers to bring women into the U.S. Although individuals are generally interviewed when they apply for citizenship and questioned about the details of their wedding, the Times reports that officials working for Homeland Security and the State Department do not specifically ask if the wedding occurred by proxy.

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Although many stats disallow proxy marriages, generally every state recognizes marriages legally conducted abroad. This means that if two parties legally marry in a foreign jurisdiction in accordance with that jurisdiction’s laws, their marriage is generally recognized in any state. The recognition of marriages legally conducted abroad is being used as a loophole to circumvent the restrictions on proxy marriages. As divorce lawyers are aware, if a proxy marriage occurs pursuant to the marriage laws of a foreign country and that country recognizes the legality of proxy marriages, the proxy marriage will be legally recognized in any state.
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It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, “marriage” currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse’s income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file “married filing separate” whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can’t have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can’t mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with “married filing separate” filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse’s tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.
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If you are a fan of Who’s the Boss? star Tony Danza, you may recall that in 2006 he separated from his wife, Tracy. Four and a half years later, Tony Danza has filed for divorce according to People.com.

As a San Diego divorce lawyer, I have had clients in similar situations; specifically, clients who have waited some length of time after separating to file for divorce. Although I do not know the reason Tony Danza personally waited to file for divorce, sometimes parties wait to file for divorce because they are attempting reconciliation. In my work as a San Diego family law attorney, I have been asked how an attempt at reconciliation effects how property is divided, and specifically how an attempt at reconciliation effects how a spouse’s earnings will be characterized by a court, that is as separate property or community property.

Generally, except as otherwise provided by statue, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. Family Code section 760. One such statutory exception is that earnings and accumulations of a spouse while living separate and apart from the other spouse are separate property. Family Code section 771.

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