ID-100207232A few weeks ago I wrote about a ruling by the North Dakota Attorney General that makes it possible for someone to be married to more than one person in two different states.

To recap, the Attorney General’s ruling said:

  1. If someone enters into a same-sex marriage in a state where it’s legal, and
  2. Then separates from their same-sex spouse but doesn’t get a divorce, and then
  3. Moves to North Dakota and wants to enter into an opposite-sex marriage …
  4. This is legal to do in North Dakota because North Dakota’s constitution and state laws prohibit same-sex marriage. So it’s as if the same-sex marriage never happened, and the person can enter into the “new” marriage in North Dakota with no issues.

Or at least, no issues in North Dakota.

This is a real scenario because the AG’s guidance was in response to a specific question from a county recorder.

How would taxes work under this scenario?

I have researched but found no formal guidance, so this is just my opinion:

  1. Under federal tax law, the original same-sex marriage would still be valid because the person never got a divorce, so …
  2. I think this person would need to file their federal taxes as married with their “original” same-sex spouse. (If kids are involved, they might be able to file as head of household under the special rules relating to head of household in cases of married but separated people. At any rate, the original marriage is still valid for federal tax purposes.) But …
  3. North Dakota doesn’t recognize that “original” marriage and now the person is in a “new” marriage in North Dakota, so the person would file a North Dakota tax return as married with their “new” spouse.
  4. If the person has filing obligations in more than one state, it could get even messier.

This obviously is a rare circumstance, but the point is: because of the hodgepodge of laws relating to same-sex marriage, scenarios like this can — and probably will — happen.

Image courtesy of Stuart Miles / freedigitalphotos.net

“This blog post, along with comments that may follow, should not be considered tax advice. Before you make final tax or financial decisions, please secure a professional tax advisor to give you advice about your unique situation. To secure Jason as your accountant, please click on the ‘Services’ link at the top of the page.”