Areas of Practice

Common Law Marriage

Common Law

Overview

Common Law Marriage in Colorado

Colorado allows parties to enter into a common law marriage. Contrary to popular belief, there is no time requirement for a common law marriage. Therefore, you do not have to live together for any specific period of time before you can have a common law marriage. However, just merely living together will not result in a common law marriage either.

A common law marriage is established by both parties agreeing to be husband and wife, evidenced by their conduct, and followed by their mutual and open assumption of a marital relationship. Most notably, conduct supporting the existence of a common law marriage would be the parties holding themselves out to family, friends or neighbors, as being husband and wife. Other actions which would support the finding of a common law marriage would be exchanging rings or having an informal wedding ceremony; having children together; commingling finances or claiming one another as a spouse on an insurance policy or tax return.

If the parties have engaged in this activity in Colorado such that a common law marriage exists, it is important to note that the marriage cannot be ended merely by ceasing this activity. The parties will continue to be married until their marriage is formally dissolved through legal divorce proceedings. As a result, the parties will be unable to marry any other individual and will continue to be financially connected to one another until they are divorced. For these reasons, in the event a party wishes to end a common law marriage, it is typically wiser to error on the side of caution and move forward with divorce proceedings to avoid the possibility that the other party later pursues financial relief against the spouse, or nullifies a subsequent marriage to another individual.

Property, Assets, Debt & More

However, once you have a common law marriage, there is not a “common law divorce.” Therefore, if parties want to dissolve their common law marriage, they will need to go through the divorce process. Moreover, if one party wants to dispute whether there was a common law marriage, a court will have to determine whether there was a common law marriage by analyzing the parties' conduct. The court will look at various factors that would support a common law marriage. For example, below are some of the factors a court will consider:

  • Holding yourself out as married. Sometimes this means referring to each other as husband and wife. Telling friends and family that “this is my husband or wife” is one indicator that you are holding yourself out that way.
  • Most courts look to more objective evidence. Joint tax returns are often a strong indicator. When couple file as married joint tax returns it usually is a sign there are common law married. Since married couples filing a joint return pay a “marriage tax” or a higher tax rate than single people, it’s a strong indicator of intent. Most people would not claim to be married and pay more taxes unless they really want to be married.
  • Joint credit and bank accounts. While the account may have different last names, when couple comingle debts and bank accounts, it’s a sign they are acting like married couples. Joint debt like auto loans, credit cards, mortgages are indicators of a marriage.
  • Joint property ownership is also another strong sign. The property could be leased such as a rental apartment and not actually owned. The joint lease agreement seems to serve the same goal as joint ownership.
  • Children. Having children together is often a strong sign of common law marriage. Courts are not fond of telling children their parents are not married and having children together is one big factor courts use to consider marriage.
  • Common law marriage affidavits. These are usually used to obtain health insurance for a co-habitant when they’re not legally married. One might think this automatically makes you married, but courts understand the affidavit is signed to get health insurance and may not give much significance to this. Yes, one should not lie to get health insurance, but the court may not hold this over a person’s head or find this alone means your common law married.

Therefore, entering into a common law marriage is very easy. However, it can only happen if each party agrees to be husband wife and then acts as husband and wife in public.

Requirements

Items Which Can Indicate Whether or Not You Are Common Law Married

Engagement

One easy way to determine whether or not you are common law married is to see whether or not you are engaged to be married. The future promise to marry is inconsistent with a marriage that already exists. If you are common law married and holding yourself out as married, then a wedding is unnecessary. Engagement rings, wedding dates, and future promises about marriage all seem to indicate you are not common law married.

Co-Habitation

Living together is not enough on its own, no matter how long you may have lived together. However, co-habitation is an important component of any common law marriage claim. Usually, this comes into play when the couple lived together for a long period of time and no longer lives together, or the cohabitation was intermittent. In these cases, there is often a dispute as to whether the co-habitation is evidence of common law marriage. The courts have to draw a line between cohabitating as a couple or just having made room in a drawer for the other party.

Reputation in the Community

Back in the day, this was a big deal, reputation in the community was considered the vanguard of truth in the court of public opinion. If everybody in the community knew it to be true, it MUST be true. This tale made its way into our courtrooms and laws and it remains a component to common law marriage claims.

So how is “reputation in the community” established? In these modern days where our communities have moved online, a couple may be established as common law married by Facebook posts, Instagram posts, Snapchats, and tweets. When presenting common law marriage claims, social media is often used to establish the couple had the reputation as married. Attorneys will also bring witnesses who support the notion that everyone in the community thought the couple was married.

Consent to Be Married

One issue the courts struggle with is the notion of “consent,” the concept being there must be some mutual agreement to be married. This mostly refers to the conduct of the parties during the cohabitation, with “consent” being established by words and deeds. Naturally, when there is a contested common law marriage claim, one side always claims they never consented to being married. Judges are faced with the trial testimony of the party who claims to have never agreed to be common law married, and must compare that statement to the real behavior, conduct, documents, and the reputation in the community. Oftentimes, judges will weigh these behavioral factors as more important and compelling than the words of the dissenting party.

The Process ”“ How Do You Prove A Common Law Marriage?

Generally, the answer is you don’t. In most circumstances, people seek a common law marriage for a reason and the reason is usually divorce. Most of the time, attorneys commence the case by filing for divorce. Yes, you file for divorce not file for marriage. The petition for Dissolution of marriage alleges a common law marriage and also seeks a divorce which can include Alimony, Child support and Property Division. Once the Petition is filed, the other party can contest the common law marriage or admit to it.

In contested cases, a Judge will sometimes separate the actions. In other words, the judge will make the parties prove the common law marriage before proceeding with a divorce. Sometimes the judge will hear all the testimony about the marriage and the divorce at the same time. There is no hard and fast rule and each judge can determine how they want to proceed.

There are also situations outside of family law where common law marriages are important. Much of the law for common law marriage has been developed outside of family law courts. For example, if a spouse dies on the job while working, the surviving spouse is entitled to workers’ compensation benefits. Those benefits usually run until the surviving spouse dies or remarries. The lifetime benefits can accumulate to hundreds of thousands of dollars over a lifetime and for many people it’s worth the effort to prove you are common law married to collect the benefits.

Colorado is one of a few states that still recognizes common law marriages, but they are not always easy to prove. A skilled attorney can help you sort through whether or not your situation meets the criteria and what your best next steps are.