Do You Have a Common Law Marriage in Colorado?
The State of Colorado recognizes the validity of common law marriages, according to Colorado Revised Statutes – Title 14-2-109. The criteria for determining if such marriage is valid include: In deciding whether a man and woman have entered into a common law marriage, it is essentially presumed by Colorado courts that parties who cohabitate, who are not married in a legally recognized marriage, do so for the purpose of living as a married couple, and the fact that they use the term "husband" or "wife" when referring to one another may be sufficient to show this intent . A provision specifying that a common law marriage shall fall apart if a legal marriage ceremony takes place is legally enforceable under Colorado law. Colorado law will recognize common law marriage from another state if it can be shown that enough other legal requirements were met in that state.
Common Law Marriage Requirements in Colorado
In order to establish a common law marriage in Colorado, the following criteria and requirements must be met:
Cohabitation and Mutual Consent
Under Colorado law, two parties intending to be monogamously committed to each other must cohabitate, and share a mutual consent to be married. The State of Colorado no longer requires a couple to publicly declare their intent to be married or marry in the presence of witnesses. However, the fact that a couple does not attend a wedding ceremony together does not automatically mean they are not married under common law.
Competency
Both parties must be competent to give mutual consent, and must be old enough to be given a license for formal marriage in the State of Colorado.
In the case of a spouse who was not of sound mind or of legal age at the time of the marriage, the couple’s marital recognition will still be valid as long as the provisions above have been satisfied.
Public Representation
The couple must publicly hold themselves out as husband and wife. However, the definition of "public" is much broader than it used to be. For example, representation to a few friends, family, and/or acquaintances would be sufficient.
According to the Colorado Court of Appeals in In re Hodges, the consideration of "holding out" can include factors such as sharing a surname, presenting yourself as a couple on tax returns, sharing joint bank accounts, or filing joint insurance policies. A court may also consider the couple’s level of intimacy.
No Marriage License
Unlike a traditional marriage, a couple can be considered married under common law without obtaining a marriage license or undergoing a public ceremony.
No Need for Court-Approved Divorce
If a couple has satisfied the provisions above, and later separates, they will be divorced by operation of law without the need for a court-approved divorce.
Rights and Benefits of Common Law Marriage
While the people in a common law marriage have not received a marriage certificate, state law considers that they are just as legally joined as those who have been issued a marriage license. Therefore, all of the benefits and duties which apply to a married couple also apply to them.
This means the partners do not pay higher taxes just because they are unmarried; they have the same rights regarding benefits payouts to a spouse from their employers as anyone else would; and they can also claim property acquired during the marriage as marital property, and either partner has claim on half of it. This means that if they have been together for 16 years, and have acquired a house worth $100,000, upon a divorce they will divide it and each get $50,000.
Ending a common law marriage in Colorado is like ending a marriage where a certificate was issued. You simply file for divorce at your local district court. At that point, all of the terms of marriage apply. In the case of an already filed divorce, you need to prove that a common law marriage existed by submitting documentation of its date.
How to Prove the Existence of a Common Law Marriage
In Colorado, the evidence that may establish a common law marriage is provided in Colorado Revised Statutes Section 14-2-109. The statute provides that "[c]ontrary to the provisions of the common law, the following shall be sufficient to give rise to a marriage . . . [j]oint federal and state tax returns for one or more years and other official name-change documents issued by a government entity that does not include a marital designation." Any other evidence that would allow a person to make an inference "from the totality of the circumstances" that a marriage exists in fact and in law may be considered.
A marriage license is not required for a common law marriage . Therefore, there is no formal documentation that evidences a common law marriage. Evidence such as the following, however, may be used in a court proceeding to establish the existence of a common law marriage: Moreover, Colorado courts have relied on common law marriage as a public policy favoring stability in times of economic turmoil. Accordingly, a court may find that a common law marriage exists even though the parties were unaware of their legal status. In re Marriage of Mosher, 836 P.2d 956, 958 (Colo. App. 1992). It should be noted that, while a common law marriage is a valid marriage in Colorado, a common law divorce is not. Thus, a common law marriage must be dissolved with a final decree of dissolution of marriage.
Termination of a Common Law Marriage
The process for ending a common law marriage in Colorado is not much different than that of ending a formally registered marriage. The main difference lies in that often times there are no formal records to divide, such as deeds or bank records and therefore both parties have an interest in the marital assets and debts held jointly. A formal divorce process is never required for a common law divorce; in fact some opt for an annulment.
Considerations for divorcing from a common law marriage include:
A common law divorce can be simplified through a divorce mediation process, which takes less time, is less adversarial and more cost effective than a regular divorce process. At the conclusion of the process, a Separation Agreement will be drafted and filed with the court. This will then be a binding Order of the court.
If parties do not agree on a Separation Agreement, a litigated divorce may be necessary. The court will then decide the distribution of the property and debts of the marriage.
Common Questions about Common Law Marriage
What is common law marriage?
Common law marriage is defined as a marriage that is entered into after two people have taken up residence together with the intention of being married without the requirement of either a ceremony or a marriage license.
Are common law married spouses entitled to equally divide property upon divorce?
Yes. Colorado law defines "marital property" and states that it includes all property acquired by either spouse after the date of marriage. Therefore, – so long as you are married at the time of your divorce – common law spouses are entitled to the same rights as ceremonial spouses.
I have been married in the past and did not enter into another marriage until several years later. Does that constitute common law marriage?
No. In Colorado, it is a requirement of common law marriage that the current spouses not have any other common law marriages at the time they enter into each subsequent ‘common law’ marriage .
How do courts determine when two people entered into a common law marriage?
Several factors are considered by the court in its analysis of the issue, including but not limited to: (1) the length of residence, (2) the age of the parties, (3) whether the parties hold themselves out as a married couple, (4) whether the parties filed a joint tax return, (5) cohabitation during the relationship and (6) whether the parties use the same last name. In determining these factors, the court will look beyond the four corners of the parties’ pleadings to the facts of the case to determine when the common law marriage occurred. For example, where one of the parties later denies the existence of a common law marriage, and the other party in fact has proof that the common law marriage existed, that would point to the date of the common law marriage.
Does it take a court order stating that a common law marriage exists to show that one exists?
No. Common law marriage is not dependent on a court’s determination. In fact, a court determination – although helpful – is only one factor in the court’s determination analysis.