North Dakota Taxes, Same-Sex Marriage, And a Really Bizarre Twist

The North Dakota Attorney General issued an “advisory opinion” on Thursday that, while not specifically addressing taxes, makes it clear that North Dakota will not under any circumstances recognize a same-sex marriage. There’s a twist to the story, which I’ll address after a bit.

But first, the basic tax perspective for a typical same-sex married couple who needs to file a North Dakota tax return: they’ll need to file that return as two single people.

From the opinion:

(S)tate law explicitly does not recognize any marriage other than one between one man and one woman, nor does it recognize any rights associated with the union. While the marriage may be valid elsewhere, the North Dakota Constitution and statutes prohibit its legal recognition.

Now for the bizarre twist part.

The advisory opinion was in response to a question posed by a county recorder who asked: if  a person enters into a same-sex marriage in a state that recognizes such a union, is separated from their same-sex spouse but never gets a divorce, and then comes to North Dakota to enter into an OPPOSITE-SEX marriage, would that be okay?

(Yes, according to this article, this apparently is a real scenario.)

According to the Attorney General, the person would be allowed to enter into the opposite-sex union in North Dakota — even though they’re still in a same-sex marriage from another state — because that same-sex marriage isn’t valid and thus never existed under North Dakota law.

I have to admit, I’ve never considered such a scenario. And now I’m digging into the federal tax consequences of this.

Since you typically can’t get married if you’re already married to someone else, I haven’t had any luck finding IRS guidance because I’m not sure this has ever happened before.

My initial reaction is: could it be that the person in this scenario would need to file their federal taxes as married with their same-sex spouse, but then file their North Dakota taxes as married with their “new” opposite-sex North Dakota spouse?

My head hurts!