Common Law Marriage in Colorado

Co-Author: Brittaney McGinnis

How Do You Get Married in Colorado?

There are two ways in Colorado to be married: common law marriage and by obtaining a marriage license certificate. Same sex couples or heterosexual couples can be married by license or they can be common law married.

Common law marriage is an often misunderstood concept. Usually, a dispute about whether or not two people were common law married to each other arises: (1) when someone wants to end or alter the relationship by divorce, legal separation, or annulment; (2) when someone wants to end the relationship and just simply move on; and (3) when someone dies and there is a dispute about who should inherit money and assets, and who should serve as the personal representative of the deceased person’s estate.

How Does a Common Law Marriage Start?

The start date of a common law marriage is either clear or not clear.

The common law marriage start date is clear when the parties do something to start telling the world that they are married. For example, holding a wedding ceremony, followed by cohabitation (living together) is one way to determine a common law marriage date (but if the couple held themselves out as married before the wedding ceremony, and lived together, they may have been common law married even before the wedding ceremony).

The common law marriage date is not clear when there has not been a specific event that can be tracked to the start of the common law marriage, and an examination of conduct over a period of time is needed.

What Are the Elements of a Common Law Marriage?

The requirements for a common law marriage were set out in a Colorado Supreme Court case titled People v. Lucero. Here are the basics: A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.

How Do you Prove or Disprove a Common Law Marriage?

According to the Lucero case, the parties’ understanding about being common law married may be only tacitly expressed. The agreement to be common law married need NOT be in words. If a common law marriage is denied by one person, the other person may prove the common law marriage by evidence of cohabitation (living together) and general repute.

Conduct manifesting or confirming the parties’ understanding or agreement to be common law married can take many forms. An agreement to be common law married can be inferred by:

• mutual public acknowledgment of the marital relationship
• holding forth to the world by the manner of daily life, by conduct, demeanor, and habits, that the man and woman have agreed to take each other in marriage and to stand in the mutual relation of husband and wife
• evidence of cohabitation and repute; general reputation or repute means “the understanding among the neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife (this can lead to serving subpoenas on friends, neighbors and family members to see what they have to say)
• specific behavior – for example – maintenance of joint banking and credit accounts; purchase and joint ownership of property; the use of the man’s surname by the woman; the use of the man’s surname by children born to the parties; and the filing of joint tax returns.

There are many more things that might indicate the existence of a common law marriage. Here is a partial list. Having things on the list may indicate common law marriage. Not having things on the list may indicate there is not a common law marriage.

1. Joint income tax returns income tax returns or married filing separate returns
2. Living together in the same home (this is mandatory – no common law marriage without this element)
3. Wearing wedding rings (photos, witnesses who will say they saw them wearing wedding rings, etc. NOTE: an engagement ring is not a wedding ring)
4. Exchanging cards and/or gifts, to celebrate a “wedding” anniversary (Becky and Bob will probably say they don’t have these items, and we won’t be able to prove that they do)
5. Identifying each other as a “spouse” on credit applications (car loans, car leases, bank loans, refinance applications, mortgage loan applications, credit card applications, etc.)
6. Identifying each other as a “spouse” on insurance applications
7. Having some kind of “ceremony” where the parties said they are marrying each other
8. Having wills identifying each other as spouses
9. Naming each other as beneficiaries on life insurance policies, specifically as a spouse
10. Naming each other as beneficiaries on bank accounts, specifically as a spouse
11. Any other written documents where the parties say they are spouses
12. Having witnesses who will say they heard both people saying they are “husband,” “wife,” or they are “married” to each other (eyewitness and “earwitness” testimony is allowed in Court, but it is not the best evidence of common law marriage)
13. Sending out wedding announcements
14. Receiving gifts that were specifically designated as wedding gifts, and not correcting the gift-giver by saying something like “we are not married” or “we cannot accept this gift, because we are not married”

No single item on the list will be determinative of whether a couple is, or is not common law married. Having one or more of the items noted above (and establishing that they live together) might be enough.

How Does a Common Law Marriage End?

When someone is common law married, there’s no such thing as a common law divorce. The common law marriage relationship can only end through death, divorce or annulment (common law marriages can also go into a “legal separation” phase, but the couple will still be married to each other).

You cannot be legally married to more than one person at a time in Colorado. So if a common law marriage happens between a couple, and then one spouse just moves out and never sees the other spouse again, they are still common law married until death. That means: (1) marital property is accumulating; (2) marital debt is accumulating; (3) alimony (also called “maintenance” or “spousal support”) rights are accruing; (4) if one common law married spouse dies and the other spouse is still alive, the living spouse can inherit from the deceased spouse; and (5) neither spouse can marry any other person legally.

Common Law Marriage and States That Don’t Recognize Common Law Marriage

It is important to realize that not every state in the United States recognizes common law marriages. That can lead to some uncertainty and strange results. For example, if a couple lived together for 20 years in a state that did not recognize common law marriage, holding themselves out as husband and wife – and then moved to Colorado and the couple got divorced one year later – the couple would probably be deemed to be common law married for only one year. That can have a significant impact on property division, debt division, and maintenance (also called “spousal support” or “alimony”).

Conversely, if a couple lived together for 20 years in Colorado, and then moved to a state that does not recognize common law marriage – and then wanted to get divorced – they might not be able to do so in the state that does not recognize common law marriage.

Conclusion

Colorado common law marriage can be a blessing or create a complex legal minefield. Couples living together who don’t want to be considered common law married should be careful about what they say and do. In addition, couples who don’t want to be considered common law married should consider signing a mutual affidavit swearing they are not common law married. Those couples should also consider having a cohabitation agreement if they want to be clear about their rights and responsibilities during the relationship and upon termination of the relationship.

For questions about this article please contact Gregg Greenstein.