For tax purposes, am I married or not?

John W. Schoen Senior Producer • Profile • E-mail

With just a week to go before the filing deadline, the Answer Desk e-mail account is taxed with questions about how to keep the IRS at bay. Aaryn, who is soon headed home to the U.S. from China with a new bride, is stuck trying to figure out which box to check when he gets to the part asking about his marital status.

I'm an American living in Shanghai, China and married to a Chinese citizen. We are currently in the middle of the immigration process and as part of that I need to show my recent tax records. I'm filing my taxes for 2005. ...My question is this: my wife has never been to America. When we eventually go there, I still have to walk down to the courthouse and officially register for marriage because currently we are only recognized by China as being married. So couldn't I simply claim on my American taxes that I am "unmarried" because I'm not recognized as being married in the United States yet?
-- Aaryn B., Shanghai, China

In other words, am I married for better or for worse, but not necessarily for tax purposes? Alas, in the eyes of both the Peoples Republic of China and U.S. Internal Revenue Service, you’re married.

According to the instruction sheet for the 1040 Form, “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife,” which means one spouse of each sex — no more and no less. If you're legally married where you're living outside the U.S., you're legally married inside the U.S. as well.

Even if your new home state hasn’t yet gotten the good news, the IRS deems you married based on the date you walked down the aisle, not the date you walked down the hallway of the courthouse to get a U.S. marriage license.

Though your new status is till death (or divorce) do you part, you still have a few choices about how to file. Generally, you can’t file a joint return if one spouse was a non-resident alien at any time during the year. But you can file jointly if you choose to have your wife treated as a U.S. resident for tax purposes.

The difference, according to IRS Publication 519, U.S. Tax Guide for Aliens, is that resident aliens pay taxes on all income — no matter where it came from. A non-resident alien usually pays tax only on income from U.S. sources.

After that, it starts to get complicated. So depending on how much income each of you had, you should probably have a good accountant help you with these choices. If you can’t do that before April 15, you can always file for an extension. Just download Form 4868 and mail it in. Only eight lines long, Form 4868 is about the easiest one the IRS has come up with yet.

Just make sure you send along a check for what you think you owe. The IRS is fine with asking for extra time with all its paperwork. But it wants your taxes paid on time.

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