A recent Colorado Court of Appeals decision explains why affidavits, cohabitation, and shared finances may not be enough to establish a valid common law marriage under Colorado law.
Colorado recognizes common law marriage although most other states do not recognize common law marriage. Many couples assume that living together for years, sharing expenses, or even signing paperwork referring to each other as spouses automatically creates a valid marriage. In May 2026, the Colorado Court of Appeals made a historic ruling in a case titled In re Marriage of Lundin that serves as an important reminder that common law marriage cases are highly fact-specific, and courts will closely examine the totality of the relationship before determining whether a legal marriage exists.
The Case: When an Affidavit Was Not Enough
In Lundin, the parties lived together for several years and, in 2021, signed an “Affidavit of Common Law Marriage” to obtain health insurance benefits for one party’s child. In the affidavit, they stated that they held themselves out as husband and wife and had lived together as spouses since 2016.
After the relationship ended, one party filed for dissolution of marriage, claiming that the affidavit conclusively established a valid common law marriage. The trial court disagreed, and the Colorado Court of Appeals affirmed.
The court held that the affidavit alone did not establish a marriage as a matter of law. Instead, the court looked at the entire relationship and concluded that the parties did not mutually intend to enter into the legal and social institution of marriage. The evidence showed that the affidavit had been signed primarily to secure health insurance coverage, not because the parties genuinely intended to live as spouses.
The court also relied on several additional facts weighing against the existence of a marriage:
- The parties maintained largely separate lives;
- Witnesses did not view them as married;
- They did not file joint tax returns;
- They lacked joint bank accounts and significant jointly owned property;
- Their relationship eventually became more platonic than marital.
The appellate court emphasized that under current Colorado law, no single factor is dispositive not even a signed affidavit.
Colorado’s Modern Common Law Marriage Test After Hogsett v. Neale
The Colorado Supreme Court significantly updated the common law marriage analysis in Hogsett v. Neale and related cases issued in 2021. Under Hogsett, the “core inquiry” is whether the parties mutually intended to enter into a marital relationship — meaning a committed, intimate partnership involving mutual support and shared obligations.
Courts now evaluate the “totality of the circumstances,” including both:
- Evidence of an agreement or intent to be married; and
- Conduct demonstrating that agreement.
The court may consider many factors, including:
- Cohabitation
- Whether the couple held themselves out publicly as married
- Joint bank accounts or credit cards
- Joint ownership of property
- Filing joint tax returns
- Shared financial responsibilities
- Estate planning documents
- Use of the same last name
- Testimony from friends, family, and coworkers.
Importantly, no single factor controls the outcome. A couple can have some indicators of marriage without actually being married under Colorado law.
Factors Courts Consider in Colorado Common Law Marriage Cases Intent Matters More Than Labels
Calling each other “husband” or “wife” is relevant, but courts will examine whether the parties truly intended to create a legal marriage. If statements about marriage were made for convenience, employment benefits, immigration issues, insurance coverage, or other practical reasons, a court may find that no marriage existed.
The court in Lundin focused heavily on why the affidavit was signed. The surrounding circumstances mattered just as much as the document itself.
Courts Look for Consistency
One of the biggest problems in contested common law marriage cases is inconsistency. For example:
- Claiming to be married on insurance forms but single on tax returns
- Introducing a partner as a spouse to some people but not others
- Maintaining entirely separate finances while claiming a marital relationship
Courts tend to look for a consistent pattern of behavior showing that the couple mutually understood themselves to be married.
Can Separate Finances Defeat a Common Law Marriage Claim?
Although separate finances do not automatically defeat a common law marriage claim, courts frequently examine whether the parties functioned economically as a married couple.
Joint accounts, shared debts, jointly titled property, and mutual financial support can all support a claim of marriage. Conversely, maintaining completely independent financial lives may undermine the claim.
Witness Testimony Often Matters
Friends, family members, neighbors, and coworkers may become important witnesses in common law marriage litigation. Courts often consider how the couple was perceived in the community.
If most witnesses testify that they never believed the parties were married, that evidence can weigh heavily against finding a common law marriage.
Legal Consequences of Common Law Marriage in Colorado
A valid common law marriage is legally equivalent to a ceremonial marriage in Colorado. If a common law marriage exists:
- The relationship can only end through divorce or death
- Property division laws apply
- Spousal maintenance (alimony) may become an issue
- Inheritance rights may arise
- Retirement and insurance benefits may be affected
Many parties do not fully appreciate these consequences until the relationship ends by death or by just “breaking up.”
A finding of common law marriage can dramatically affect property division, spousal maintenance, inheritance rights, retirement accounts, and financial obligations. If your relationship may qualify as a common law marriage, consulting experienced legal counsel is essential before making financial or legal decisions.
How to Avoid Accidentally Creating a Common Law Marriage
If you believe you are in a common law marriage or wish to avoid unintentionally creating one, it is important to act consistently with your intentions.
Couples claiming a common law marriage should consider whether they have:
- Consistently represented themselves as married
- Shared finances and responsibilities
- Maintained documents reflecting marital status
- Created estate planning documents identifying one another as spouses
- Taken advantage of benefits which might have to be forfeited back to provider, if a court decides they were not common law marriage
- Filed taxes consistently with their claimed marital status and whether they committed tax fraud by claiming common law marriage if they were not common law married
On the other hand, couples who do not intend to be married should be cautious about signing affidavits, benefit forms, or legal documents identifying themselves as spouses. There may be other options, such as designating your significant other as a “domestic partner.”
Because Colorado courts examine the totality of the circumstances, even small details can significantly impact the outcome of a common law marriage case. An experienced Colorado family law attorney can evaluate the evidence and help determine whether a valid marriage likely exists.
Conclusion
The Lundin decision reinforces that Colorado common law marriage cases depend on the full reality of the relationship, not merely labels, isolated statements, or signed forms. Courts will closely analyze whether the parties truly intended to enter into a marital relationship and whether their conduct consistently reflected that intent.
Because common law marriage disputes can involve substantial financial and legal consequences, individuals facing questions about marital status, property rights, inheritance, or divorce should seek experienced legal counsel as early as possible.
If you have questions about common law marriage in Colorado, the attorneys at FJGG can evaluate your situation, explain your rights, and help you protect your financial future. Contact our office today to schedule a confidential consultation.
