Cecily Zamora
Common law marriage in Colorado is a confusing topic for many, due to the numerous rumours and stories about what constitutes such a marriage. For example, simply living together for a certain period does not create a common law marriage. While cohabitation is a factor in determining whether there is a common law marriage, it is not required, and no specific duration is necessary. Instead, the two major components necessary to establish a common law marriage are the mutual consent or agreement of the parties and the mutual and open assumption of a marital relationship. If there is a dispute about a common law marriage, the probate court may hold an evidentiary hearing, and it will be up to the parties involved to prove that they were common-law married.
| Characteristics | Values |
|---|---|
| Cohabitation | Not required, but can be used as evidence |
| Agreement to be married | Required |
| Holding yourself out as married | Required |
| Length of cohabitation | No minimum duration required |
| Evidence | Joint tax returns, affidavit swearing the couple is married, joint bank accounts, registration as a married couple, use of the same last name, etc. |
| Termination | Only possible through divorce or death |
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What You'll Learn
Mutual consent and cohabitation
It's important to note that this mutual consent doesn't need to be explicitly expressed verbally or in writing. Instead, it can be inferred from the couple's conduct and how they present themselves to the world. For instance, referring to each other as “husband” and “wife" or "my common-law husband/wife" can indicate this mutual consent.
Now, let's discuss cohabitation. While cohabitation, or living together, is not a requirement for common-law marriage in Colorado, it is a relevant factor that can help determine the existence of such a marriage. Importantly, there is no specified duration for cohabitation; even a short period of living together can be considered.
To prove mutual consent and cohabitation in a common-law marriage, various types of evidence can be presented. This includes documents such as joint tax returns, joint bank accounts, registration as a married couple on applications or leases, and affidavits of common-law marriage. However, as demonstrated in the case of Little, documentary evidence often holds more weight than witness testimonies.
In conclusion, mutual consent and cohabitation are fundamental aspects of a common-law marriage in Colorado, and they can be established through a combination of verbal agreements, conduct, and documentation.
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Holding yourself out as married
While cohabitation is not required for a common-law marriage, it is a relevant factor that may be considered by the courts. However, simply living together for a certain period of time is not enough to establish a common-law marriage. The court will look for evidence of an agreement to be married and conduct that demonstrates this agreement. This may include maintaining a joint checking and/or savings account, registering as husband and wife on applications, leases, or contracts, and the woman taking the man's last name.
In addition to holding yourself out as married, there are other requirements that must be met for a common-law marriage to be recognised in Colorado. These include the mutual consent or agreement of both parties to enter into a marital relationship and the freedom to contract a valid marriage (i.e. neither party is already married to someone else). Same-sex couples are also eligible for common-law marriage in Colorado, provided they meet the same requirements as opposite-sex couples.
It is important to note that there is no single element or formula that can definitively prove a common-law marriage. The determination is made by the courts on a case-by-case basis, considering all the evidence presented. This may include witness testimony, but documentary evidence is often given more weight. If there is a dispute about a common-law marriage, it will need to be addressed in probate court, where both parties will have the opportunity to present their case and provide evidence.
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No single proof
Common law marriage in Colorado is a confusing topic for many because of the numerous rumours and stories about what constitutes such a union. While there are certain criteria that must be met, there is no single proof that can be used to validate a common law marriage.
Firstly, it is important to note that common law marriage in Colorado is not based on the length of time a couple lives together. Simply cohabiting for a period of time does not create a common law marriage. While cohabitation is a relevant factor, it is not a requirement, and there is no specific duration that must be met.
Secondly, the Colorado Supreme Court has explicitly stated that there is no single element or formula that constitutes a common law marriage. The court in People v. Lucero clarified that any form of evidence openly demonstrating the intention of the parties to be recognised as husband and wife will provide the necessary proof of their mutual understanding. This means that the precise evidence that proves or disproves a common law marriage is left to the interpretation of attorneys and judges.
Various forms of evidence can be used to prove a common law marriage. For example, the couple's references to or labels for one another, such as calling each other husband or wife. Other examples include maintaining a joint bank account, registering as a married couple on applications or leases, the use of the man's last name by the woman, and the time requirement necessary to establish these circumstances.
Additionally, documentary evidence, such as joint tax returns, insurance documents, and Medicaid records, may be considered more compelling than witness testimonies that contradict these documents. An affidavit of common law marriage can also be used as evidence, but it is usually not sufficient on its own and may be motivated by ulterior motives, such as obtaining medical care or defrauding an insurer.
In conclusion, while there are specific requirements that must be met for a common law marriage to be recognised in Colorado, there is no single proof that can validate it. The court will consider all the evidence together and make a determination based on the totality of the circumstances.
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Divorce and death
Divorce
If a couple in a common-law marriage decides to separate, they will need to go through a formal divorce process. Common-law marriages in Colorado are recognised by the courts and are treated the same as statutory marriages when it comes to divorce. This means that issues such as alimony, child custody, and child support will need to be addressed during the divorce proceedings.
To initiate the divorce process, one spouse may claim a common-law marriage while filing for divorce. The court will then determine the validity of the common-law marriage before proceeding with the divorce as if it were a normal statutory marriage. The burden of proof falls on the couple claiming the common-law marriage, and they must present evidence to support their claim.
Death
In the event of the death of one partner in a common-law marriage, the surviving partner may need to prove the existence of the marriage to secure their share of the estate and inheritance rights. This is especially important if family members of the deceased contest the relationship status to protect their own inheritance.
The court will consider various types of evidence to determine the validity of the common-law marriage, including witness testimony, documents, tax returns, and the couple's references to each other. An important case to note is Whitenhill v. Whitenhill, where the court found that an affidavit of common-law marriage alone was insufficient to prove the existence of the marriage. Therefore, it is crucial for couples in a common-law marriage to maintain a paper trail and documentation that evidences their marital status.
In summary, while common-law marriages in Colorado are recognised and provide similar rights during divorce, proving the existence of such a marriage can be complex in the event of separation or death. Consulting with a divorce attorney or family law attorney is highly recommended to understand your rights and navigate the legal process effectively.
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Evidence and witnesses
In Colorado, proving a common-law marriage can be challenging, and the burden of proof rests on the person claiming the existence of such a marriage. When it comes to evidence and witnesses, here's what you should know and prepare:
Obtain Official Records: Gather any official documents that could serve as evidence of your common-law marriage. This includes government forms or applications where you listed your partner as a spouse, such as tax returns, census records, or next-of-kin designations on insurance policies or medical records. These documents can provide strong evidence of your intention to be considered legally married.
Collect Informal Documentation: In addition to official records, gather any informal documentation that reflects how you and your partner presented your relationship to the world. This could include letters, emails, cards, or social media posts in which you refer to each other as spouses or indicate a marital relationship. Photographs depicting wedding ceremonies, family events, or other occasions where you presented yourselves as a married couple can also be powerful evidence.
Identify Witnesses: Witnesses play a crucial role in corroborating your claim of a common-law marriage. Identify individuals who knew you and your partner during the period you claim to have been married. These witnesses should be able to testify about your reputation in the community as a married couple. Friends, family members, neighbors, or colleagues who have personal knowledge of your relationship and can attest to your commitment and mutual agreement to be spouses are ideal witnesses.
Prepare Witness Testimonies: Work with your witnesses to prepare clear and consistent testimonies. Witnesses should be able to describe specific instances or behaviors that demonstrate your intention to be married. For example, they might testify about conversations they had with you or your partner regarding your relationship, joint purchases or financial decisions, or how you introduced each other to others. The more specific and detailed the testimonies are, the more compelling they will be.
Preserve Evidence: Ensure that all evidence, including documents and digital communications, is properly preserved and, if necessary, authenticated. If you are relying on digital evidence, such as text messages or emails, be prepared to explain any gaps or missing portions. It is important to present a comprehensive and consistent narrative through your evidence and witness testimonies.
It is important to note that the strength of your evidence and witnesses will depend on their ability to demonstrate the key elements of a common-law marriage: mutual agreement to be spouses, cohabitation, and public representation as a married couple. Consult with an attorney familiar with Colorado family law to guide you through the specific requirements and strategies for presenting your case effectively.
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Frequently asked questions
The two major requirements for a common-law marriage in Colorado are the “mutual consent or agreement of the parties” and the "mutual and open assumption of a marital relationship." This means that both parties must agree to be married and then act like a married couple.
There is no single piece of evidence that proves or disproves a common-law marriage in Colorado. The courts will consider all evidence together. Examples of evidence that may be considered include cohabitation, the couple's references to one another (e.g. calling each other husband and wife), maintenance of a joint checking account, registration as husband and wife on applications, and the use of the same last name.
If you need to prove your common-law marriage in Colorado, you may need to go to court and present your evidence. Some private or educational institutions may require proof of common-law marriage through joint tax returns or a signed and notarized affidavit.
