Kara Sears
If you are common-law married in Colorado and wish to divorce, you should be aware that Colorado is one of the few states that recognizes common-law marriages. A common-law marriage is a marriage without a formal ceremony and license, where both parties are over 18, live as a married couple, and agree to be married. To divorce, you must follow the same process as a formally married couple, which includes filing for divorce at the clerk's office and mailing a copy to your spouse. The burden of proof falls on the couple to prove they are married, and the court will scrutinize documents and witness testimonies to determine the validity of the marriage. It is important to consult with a family law attorney to navigate the legal process and ensure a smooth divorce.
| Characteristics | Values |
|---|---|
| Definition of common-law marriage | A marriage without a formal ceremony and marriage license |
| Recognition in Colorado | Yes, if both parties are over 18, live as a married couple, and assume a marital relationship |
| Proof of common-law marriage | Documents and witnesses (family and friends) to back up the claim |
| Evidence considered by the court | Tax returns, use of maiden name on important documents, joint business ownership, individual living arrangements, etc. |
| Dissolution of common-law marriage | Formal dissolution of marriage, annulment, or legal separation |
| Payment methods for fees and fines | Online using the Colorado State Judicial Online Payment Process or in person at the clerk's office |
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What You'll Learn
Common law marriage requirements
Colorado is one of the few states that recognize common-law marriages. A common-law marriage is a legal union between two individuals who meet specific criteria without obtaining a formal marriage license or ceremony. While there is no specific time requirement for cohabitation, couples must meet several criteria to be considered legally married under common law in Colorado.
Firstly, both parties must be over the age of 18. Secondly, the couple must live together and openly cohabit as a married couple. This can include referring to each other as husband or wife, using the same last name, listing each other as spouses on insurance or other legal documents, or filing joint tax returns. Holding themselves out as married can also include joint financial accounts, shared property ownership, wearing wedding rings, and referring to each other as spouses. Affidavits from friends and family members can also be used to establish the couple's reputation as married.
It is important to note that simply living together does not constitute a marriage, even if it is for decades. The amount of time a couple is together is inconsequential in the eyes of the state of Colorado. You must agree to be married and hold yourself as married to be considered common law, while living together.
If you are claiming common-law marriage, it is advisable to have documents and a lot of family and friends to back up your claim. This is to prevent fraud and prove that you are married. The burden of proof falls on the couple, and a court would need to conduct a hearing to determine the facts presented and the credibility of the evidence.
Colorado provides an Affidavit of Common Law Marriage form that can be completed and brought to the county clerk's office to be recorded. However, it is important to note that this form is not proof of a valid common-law marriage but is instead one of the things a judge will consider in making that determination.
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Proving your marriage
Common law marriage in Colorado is a confusing topic for many because of how many rumors and stories there are about what constitutes a common-law marriage. Simply living together for a period of time does not create a common-law marriage. While cohabitation is a relevant factor in determining whether there is a common-law marriage, it is not required, and if there is cohabitation, no specific duration is required.
The two elements necessary to prove a common-law marriage are:
- "Mutual consent or agreement of the parties"
- "Mutual and open assumption of a marital relationship"
The couple must meet the following criteria:
- Both are free to contract a valid ceremonial marriage (e.g. they are not already married to someone else)
- Both parties are of legal age (18). If either party is between the ages of 16 and 18, they shall have obtained appropriate parental or guardian consent
- Both people in the relationship must consent to being committed to one another
You can prove these elements by introducing evidence at a hearing, such as witness testimony and documents. Examples of evidence that may be requested include:
- The couple's references to or labels for one another (calling each other husband/wife)
- Maintenance of a joint checking and/or savings account
- Registration as husband and wife on applications, leases, contracts, registers, etc
- Use of the man's last name by the woman
- Joint tax returns
- A signed, notarized affidavit, attesting to the marriage, filed with the County Clerk and Recorder in the county where they reside
If there is a disagreement about a common-law marriage that affects inheritance or probate issues, this will need to be addressed in probate court. It may be that the probate court holds an evidentiary hearing where you will be able to testify, call witnesses, and present evidence. It will be your job to prove to the Court that you were common-law married.
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Documenting your marriage
Colorado is one of the few states that recognize common-law marriages. A common-law marriage is a marriage without a formal ceremony and marriage license. To be considered a common-law marriage in Colorado, both parties must be over 18, live as a married couple, and assume a marital relationship. Simply living together does not constitute a marriage, even if it's for decades. The amount of time a couple is together is inconsequential in the eyes of the state of Colorado. To be considered a common-law marriage, there must be an intention to enter into a marital relationship—to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation.
If you are claiming a common-law marriage, it is important to have documents and witnesses to back up your claim. This is to prevent fraud. There are several types of evidence that can be used to prove a common-law marriage, and judges will scrutinize these cases closely to make sure common-law marriages are not self-serving. The court will consider all the evidence together—there is no single element that will prove or disprove a common-law marriage.
Some examples of evidence that can be used to prove a common-law marriage include:
- The couple's references to or labels for one another (calling each other husband/wife)
- Joint bank accounts
- Signing documents as a married couple, such as for insurance or employer purposes
- Filing joint tax returns
- Using the same last name on important documents
- Testimony from family and friends who knew the couple well and can attest to their relationship
It's important to note that documentary evidence is often given more weight than witness testimony in these cases. For example, in one case, a couple lived together, ran a business together, and referred to each other as husband and wife, but the court found no common-law marriage because they filed individual tax returns and claimed to be single for insurance and Medicaid purposes. In another case, a couple had virtually all documents pointing to no marriage, but the court found a common-law marriage based on testimony from family and friends who believed they were married and the wife's presentation of some documents.
If there is a dispute about whether a common-law marriage existed, the Court will hold an evidentiary hearing, and it will be up to the couple to prove they were common-law married. If the Court finds that a common-law marriage existed, the divorce process will proceed the same as any other divorce case.
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Filing for divorce
Colorado is one of the few states that recognize common-law marriages. A common-law marriage is a marriage without a formal ceremony and marriage license, where both parties are over 18, live as a married couple, and assume a marital relationship. To prove a common-law marriage, you need documents and witnesses to back up your claim. This is to prevent fraud and scrutinize cases closely, ensuring common-law marriages are not self-serving.
If you are looking to file for divorce in Colorado when common-law married, you must follow the same procedures as a couple with a formal marriage license. You can file for divorce in Colorado by submitting the necessary paperwork either through the Colorado Courts Efiling system or in person at the clerk's office. The address can be found at the top of the summons. You must then mail a copy to your spouse.
There are several steps and forms needed for the Initial Status Conference, which you should review. You should also read and follow the instructions in the Case Management Order. If you cannot afford the filing fees, you can also read about Information on Fee Waivers.
It is important to note that once a couple has married in Colorado, common-law or otherwise, the only way to dissolve the marriage is through a formal dissolution of marriage, an annulment, or a legal separation. Simply walking away from a common-law marriage without a formal dissolution can lead to issues if you try to remarry, as this would be considered bigamy.
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Legal representation
If you are considering a divorce from a common-law marriage in Colorado, it is important to seek legal representation to guide you through the process and protect your interests. Here are some key considerations when it comes to legal representation:
- Expertise in Family and Divorce Law: Look for attorneys or law firms that specialise in family law and have experience handling common-law marriage divorces in Colorado. They should have a deep understanding of the specific laws and procedures applicable to your case.
- Experience with Common-Law Marriages: Given the unique nature of common-law marriages, it is beneficial to engage lawyers with proven experience in this area. They should be well-versed in the criteria for recognising common-law marriages in Colorado, including the requirements of both parties being over 18, living as a married couple, and assuming a marital relationship.
- Evidence and Documentation: A critical aspect of common-law marriage divorces is providing evidence to support your claim of a marital relationship. Your legal representation should advise you on gathering the necessary documentation, such as tax returns, joint bank accounts, lease agreements, or any other relevant records. They should also guide you on the types of witnesses, such as family and friends, who can corroborate your claim.
- Spousal Support and Property Division: If spousal support or complex property division is expected to be a factor in your divorce, ensure your legal representation has expertise in these areas. They should advocate for your interests and help you navigate the financial implications of the divorce, including any spousal support obligations that may arise.
- Child Custody and Support: If there are children involved, your legal representation should be skilled in handling child custody and support matters. They should provide guidance on establishing parenting plans, determining child support obligations, and ensuring the best interests of the children are prioritised.
- Confidential Consultation: Reputable family law firms often offer confidential consultations, allowing you to discuss the specifics of your situation and gain a better understanding of your legal options before committing to their services. This initial consultation can provide valuable insights into the firm's expertise, approach, and compatibility with your needs.
One such law firm that appears to meet these criteria is Petrelli Previtera, LLC, a family law firm with offices in Denver, Jefferson, and Douglas Counties, Colorado. They claim to have over 30 years of experience in family law, including common-law marriage divorces, child custody, and complex property division matters. They offer divorce attorney consultations, during which you can seek personalised advice and decide if they are the right fit for your legal representation.
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Frequently asked questions
A common-law marriage is a marriage without a formal ceremony and marriage license. It is a marriage that is determined to exist by a court rather than by statute. In Colorado, a common-law marriage is recognized if both parties are over 18, live as a married couple, and assume a marital relationship.
To end a common-law marriage in Colorado, you need to get a legal divorce through a court. The process is the same as for any other divorce. You or your spouse must have lived in Colorado for at least 91 days before you can file a divorce case.
If your common-law marriage is in dispute, there will likely be a hearing to determine whether the marriage exists. The court will scrutinize documents and assess the credibility of the parties and witnesses.
Assets attained during the relationship, including businesses, retirement accounts, and physical properties, may be considered marital property and thus subject to division.
If your spouse dies and a common-law marriage hasn’t been established, you’ll have to prove one existed. This will likely involve a hearing where the court will decide based on the facts presented and the credibility of the evidence.
