Cecily Zamora
Common-law marriage in Colorado is a confusing topic due to the many misconceptions about what constitutes a common-law marriage. For example, simply living together for a certain period does not create a common-law marriage. While cohabitation is a relevant factor, it is not required, and there is no minimum time period for cohabitation. To be considered common-law married in Colorado, a couple must meet certain criteria, including both parties being free to contract a valid marriage, mutual consent to be married, and a mutual and open assumption of a marital relationship. If there is a dispute about a common-law marriage, a court will consider various types of evidence, such as witness testimony, documents, and the couple's references to one another.
| Characteristics | Values |
|---|---|
| Recognition | Colorado is one of the few remaining states that recognize common-law marriage. |
| Same-sex recognition | Colorado recognizes same-sex common-law marriages. |
| Requirements | The two requirements for common-law marriage are mutual consent or agreement to enter into a marriage and conduct manifesting that agreement. |
| Time requirement | There is no time limit or requirement. A common-law marriage could exist after one month and may not exist after thirty years. |
| Termination | Common-law marriage can only be terminated by legal divorce or the death of one of the parties. |
| Documentation | There is no legal procedure for common-law divorce. Colorado law provides for a standard divorce process for all marriages. |
| Inheritance | If a spouse in a common-law marriage dies without a will, the surviving spouse is entitled to inheritance benefits. |
| Evidence | Evidence of common-law marriage includes cohabitation, providing financial support, and one party listing the other as a spouse on several forms. |
| Affidavit | Colorado provides a form for an Affidavit of Common Law Marriage, but it is not proof of a valid common-law marriage. |
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What You'll Learn
Mutual consent to be married
The second requirement is a mutual and open assumption of a marital relationship. This means that the couple must hold themselves out to the public as being married. This could include public declarations of their marital status, such as referring to each other as husband and wife, or spouse, and registering as such on applications, leases, contracts, and registers. However, it is important to note that simply cohabiting or living together for a certain period does not create a common-law marriage, although it is a relevant factor.
If there is a dispute about whether a common-law marriage exists, a court or agency decision will be required, usually as part of a divorce or probate case. The court will consider various types of evidence, including the couple's references to or labels for one another, and there will be an evidentiary hearing where witnesses can be called and evidence presented.
It is possible to complete an Affidavit of Common Law Marriage in Colorado, which states the couple's ages, that there are no impediments to their marriage, and that they are, in fact, married. However, this is not proof of a valid common law marriage and is just one factor a judge will consider.
It is important to note that if a common-law marriage is not intended, it is advisable to avoid any actions that could be interpreted as a mutual agreement to be married, such as cohabitation, referring to each other as husband or wife, or signing an affidavit of common-law marriage.
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Public assumption of a marital relationship
To establish a common-law marriage in Colorado, there are two major components that are necessary: "mutual consent or agreement of the parties" and the "mutual and open assumption of a marital relationship". This means that both parties must be free to contract a valid marriage, i.e. they are not already married to someone else, and both must agree to be married.
The second component, the "mutual and open assumption of a marital relationship", requires that the couple holds themselves out as married. This can include public declarations of being married, such as referring to each other as "husband", "wife", or "spouse", even in jest. It also includes changing your social media status to "married", signing an affidavit of common-law marriage, and going through a ceremony, even if it is only an expression of love or commitment.
Other factors that can show that a couple is assuming a marital relationship include joint finances, such as bank accounts and credit cards, joint ownership of real estate, shared club or gym memberships, wedding rings, and having children together.
It is important to note that simply cohabiting or living together is not sufficient to establish a common-law marriage. There is also no time limit or requirement for a common-law marriage to be established. It could exist after one month or may not exist after thirty years. The facts and circumstances of each case are what matter.
If you do not want your relationship to be considered a common-law marriage, it is important to avoid sending mixed messages and making any public declarations about your marital status. You can also prepare and sign a notarized document stating that you are not in a common-law marriage.
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No cohabitation requirement
Colorado is one of the few remaining states that recognize common-law marriages. However, it is a confusing topic due to the many misconceptions about what constitutes a common-law marriage. For example, simply living together for a certain period does not create a common-law marriage. While cohabitation is a relevant factor, it is not a requirement, and no specific duration is mandated.
If you are in a common-law marriage, you are "just as married" as any other married couple. However, you may encounter issues proving that your marriage exists. To prove a common-law marriage, the two elements necessary are:
- Mutual consent or agreement of the parties to enter into the legal and social institution of marriage.
- Mutual and open assumption of a marital relationship, meaning the couple holds themselves out to the public as being married.
The court will consider many types of evidence to determine if a common-law marriage exists, including the couple's references to or labels for one another (calling each other husband/wife). Other examples of evidence of a common-law marriage include:
- Maintenance of a joint checking and/or savings account.
- Registration as husband and wife on applications, leases, contracts, registers, etc.
- The woman using the man's last name.
If you want documentation related to your common-law marriage status, you can complete an Affidavit of Common Law Marriage. However, this is not proof of a valid common-law marriage but rather one of the things a judge will consider.
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Common law marriage disputes
Common law marriage is a confusing topic in Colorado due to the many rumours and stories about what constitutes one. For example, many people believe that "if we live together for two years, we must be common-law married", but this is not true. While cohabitation is a relevant factor in determining a common-law marriage, it is not required, and cohabitation without the intention to be married does not create a marriage.
To be considered common-law married in Colorado, a couple must meet the following criteria:
- Both parties are free to contract a valid ceremonial marriage (i.e., they are not already married to someone else).
- Cohabitation.
- Agreement to be married.
- Holding themselves out as married.
In addition to these requirements, the Lucero court set out several other factors that courts should consider when determining whether a common-law marriage exists, including joint finances, such as bank accounts and credit cards. However, in 2021, the Colorado Supreme Court revisited these traditional requirements and found them wanting, particularly when applied to same-sex couples.
If a common-law marriage is in dispute, one party's testimony about their intention to be married or not is usually insufficient. Instead, admissible evidence for each of the relevant Hogsett factors is required. Documentary evidence, such as tax returns and insurance forms, may be considered more compelling than witness testimonies.
To end a common-law marriage, a couple must file for divorce, the same as a statutory marriage. If unmarried parties have children together, parenting time, decision-making, child support, and other disputes can be resolved through an Allocation of Parental Responsibilities action or a Paternity action under the Colorado Revised Statutes. Additionally, parties that are not in a valid common-law marriage may still have legal remedies against each other, such as breach of contract or unjust enrichment.
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Divorce from a common law marriage
In Colorado, common-law marriage is recognized and valid, providing the couple with the same legal rights and protections as a traditionally married couple. However, as with any marriage, sometimes things don't work out, and a divorce may be necessary. Here is a guide to navigating a divorce from a common-law marriage in Colorado:
First and foremost, it's important to establish that you are indeed in a common-law marriage. Colorado recognizes common-law marriage when a couple meets these requirements: they cohabit (live together), they have agreed to be married (shown through their actions and words), and they present themselves to the public as a married couple. This can include using the same last name, referring to each other as spouses, and filing joint tax returns. If these criteria are met, the common-law marriage is valid and recognized by the state.
Once the common-law marriage is established, the divorce process is relatively similar to that of a traditional marriage. One spouse will need to file a petition for dissolution of marriage with the court. This petition should include information about the marriage, such as the date and place of the common-law marriage, and any relevant details about shared property, children, and so on. The filing spouse will also need to pay the required fees and ensure proper service of the divorce papers to the other spouse.
After the divorce papers have been served, the other spouse will have the opportunity to respond. They may choose to agree to the terms set out in the petition or provide their own counter-petition, outlining any disagreements or additional requests. This is the stage where negotiations typically begin, and it is highly advisable for both spouses to seek legal representation to ensure their rights are protected. Colorado is an equitable distribution state, which means that marital property is divided in a manner that is deemed fair, though not necessarily equal.
If there are children involved, the divorce process can become a little more complex. Issues of child custody, visitation, and child support will need to be addressed and agreed upon. Again, the court will always strive to act in the best interests of the children involved. Spousal maintenance (alimony) may also be a factor, depending on the financial situation of each spouse and the length of the marriage.
Finally, once all matters have been agreed upon or ruled upon by the court, a final hearing will be held to finalize the divorce. The divorce decree will outline the terms of the divorce, including property division, child custody arrangements, and any ongoing financial support. At this point, the common-law marriage will be officially dissolved, and both parties will be free to remarry or enter into another common-law marriage if they so choose. It's important to remember that every situation is unique, and seeking legal advice is always recommended to ensure your best interests are represented.
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Frequently asked questions
The two requirements for a common-law marriage in Colorado are "mutual consent or agreement of the parties" and "mutual and open assumption of a marital relationship". This means that both parties must be free to enter into a marriage, be of legal age, and neither can already be married to someone else.
If there is a dispute about a common-law marriage, a court will consider the evidence and make a decision. Evidence may include the couple's references to one another, witness testimony, and documents such as a joint savings account or registration as husband and wife on applications.
A common-law marriage is treated the same as a statutory marriage, so the only way to end the marriage is to file for divorce.
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