Cameron Miranda
Colorado is one of the few states that recognize common-law marriages and divorces. A common-law marriage is established when two people agree to be married and act like a married couple. There is no minimum time period for cohabitation, but the couple must live together and meet other conditions, such as being at least 18 years old and not already married. Common-law spouses have the same rights and obligations as spouses in a ceremonial marriage, including inheritance rights. To end a common-law marriage, a couple must go through the same divorce process as a traditionally married couple.
| Characteristics | Values |
|---|---|
| States that recognize common-law marriage | Colorado, one of the few remaining states |
| Common-law marriage definition | Two people are common-law married through mutual agreement or consent to enter into the legal and social institution of marriage, followed by conduct manifesting that mutual agreement |
| Requirements for common-law marriage | Mutual consent or agreement of the parties, mutual and open assumption of a marital relationship, cohabitation, providing financial support, one party listing the other as a spouse on several forms over the years, both parties must be legally allowed to marry, both parties must intend to get married, both parties must represent themselves to others as a married couple |
| Common-law marriage and same-sex couples | Recognized under state and federal law, but there are nuanced differences |
| Common-law marriage and divorce | Treated the same as a statutory marriage, the only way to end it is to file for divorce |
| Common-law marriage and inheritance | Common-law spouses have the same inheritance rights as spouses married by marriage license |
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What You'll Learn
Common-law marriage requirements in Colorado
Common-law marriage is a legally recognised form of marriage in Colorado, provided that specific criteria are met. Colorado is one of the few states in the U.S. that recognises common-law marriages. Couples in these types of unions typically don’t get married through a formal ceremony. However, under Colorado law, a couple in a common-law marriage has the same rights and responsibilities as couples who get married in a formal ceremony.
The two major components necessary to establish 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". There is no time requirement for cohabitation, but the couple must demonstrate that they have lived together in a marital-like relationship. Holding themselves out as married 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. Evidence of a common-law marriage can also include joint financial accounts, shared property ownership, and wearing wedding rings. Affidavits from friends and family members can also be used to establish the couple’s reputation as married.
If a common-law marriage exists, the court would then treat the marriage in the same manner as a statutory marriage. If a spouse in a viable common-law marriage dies without a will, the surviving spouse is normally entitled to the inheritance benefits provided for under the state's laws, as well as other death benefits. If a couple has already been married and divorced, the standard for proving a subsequent common-law marriage may be relaxed.
To prove a common-law marriage in Colorado, a couple must introduce evidence at a hearing, such as witness testimony and documents. If you'd like documentation directly related to your common-law marriage status, you can complete an Affidavit of Common Law Marriage and bring this form to the county clerk's office to be recorded. However, be aware that the form isn't proof positive that you're in a valid common-law marriage. It's just one of the things a judge will look at in making that determination.
If you want to end a common-law marriage in Colorado, divorce is the only path. There is no provision for a "common-law" divorce as a common-law marriage is the same as a ceremonial marriage. This means that if one or both spouses can establish that they were in a common-law marriage, then it takes a formal legal action to dissolve the marriage.
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Divorce and common-law marriage
In Colorado, a common-law marriage is a marriage without a formal ceremony or marriage license. It is a marriage that is established by 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 present themselves as married. There is no time limit or requirement for how long it takes to be considered a common-law marriage—it could be one month or thirty years. The key question is whether the couple intended to enter a marital relationship and share a life together as spouses.
If a common-law marriage exists, it is treated the same as a statutory marriage in the eyes of the law. This means that if a couple with a common-law marriage wishes to separate, they must go through the same legal divorce proceedings as any other married couple. They will also have to handle issues of alimony, child custody, and support. In the case of one spouse's death, if a common-law marriage hasn't been established, the surviving partner will have to prove that the marriage existed.
It is important to note that the determination of a common-law marriage in Colorado depends on issues of fact and credibility. District courts will often hold hearings to determine whether a common-law marriage exists, and each spouse will likely testify before the court. In some cases, one spouse may argue that a common-law marriage exists during divorce proceedings.
The definition of a common-law marriage can also impact the division of assets upon separation. Assets attained during the relationship, including businesses, retirement accounts, and physical properties, may be considered marital property and subject to division. This could encourage or discourage partners from proving their common-law marriage status, depending on their individual circumstances.
Colorado recognizes same-sex common-law marriages, although there may be nuanced differences. Same-sex couples now have the same rights as heterosexual couples when it comes to both ceremonial marriages and common-law marriages.
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Same-sex common-law marriages
In Colorado, common-law marriages are recognised as legally binding, with common-law couples considered to be married without having registered their relationship as a marriage with the state. Common-law marriages have been recognised in Colorado since 1887, and same-sex common-law marriages are also recognised under state and federal law.
The two major components necessary to establish 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. This can include cohabitation, providing financial support, and listing each other as spouses on official forms.
There is no time limit or requirement for a common-law marriage to be recognised in Colorado. It could exist after one month or may never exist after thirty years. The determination of a common-law marriage is based on issues of fact and credibility, and a hearing must be held to determine whether a common-law marriage exists.
In the case of same-sex common-law marriages, the Colorado Supreme Court ruled that same-sex couples must be allowed to enter into common-law marriages, and the state must retroactively recognise common-law marriages of same-sex couples that occurred prior to the legalization of same-sex marriage in 2015. This means that if an LGBTQ+ couple intended to enter into a marital relationship before 2015, the court will still treat the marriage as valid.
It is important to note that while Colorado recognises same-sex common-law marriages, there may be nuanced differences in how these marriages are treated compared to ceremonial marriages or opposite-sex common-law marriages. For example, prior to the legalization of same-sex marriage, same-sex couples could not file joint tax returns or refer to themselves as married on government forms. These factors may still be considered by the court in determining the existence of a common-law marriage.
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Common-law marriage and inheritance
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. It is a marriage between two people through mutual agreement or consent to enter into a legal and social institution of marriage. This mutual consent and agreement do not have to be expressly made orally or in writing.
If a couple separates and the court determines they were married under common law, the partner earning less income may be entitled to spousal support. Conversely, the higher-earning partner may wish to contest the common-law marriage to avoid this financial obligation. In the event of one partner's death, the relationship's definition could impact inheritance rights. Family members might contest the relationship status to protect their inheritance, while a long-term partner could aim to prove common-law marriage status to secure their share of the estate.
A common-law spouse may be entitled to specific spousal rights, including:
- Taking a bequest under the decedent partner's will as their spouse
- Asserting a spouse's elective share under state law instead of taking under the will
- Receiving retirement accounts or other assets that name a spouse as the beneficiary
- Inheriting an intestate share of the deceased partner's property when there was no will as the spouse under state law
- Asserting their right to the highest priority to serve as a personal representative of the deceased partner's estate
- Asserting a claim in the estate for a family allowance and an exempt property allowance under state law
In Colorado, a common-law marriage is recognized if both parties are over 18, live as a married couple, and assume a marital relationship. The amount of time a couple is together is inconsequential. The two elements necessary to prove a common-law marriage are "mutual consent or agreement of the parties" and a "mutual and open assumption of a marital relationship." This can be proven by introducing evidence at a hearing, such as witness testimony and documents.
If a common-law marriage exists, the court treats the marriage the same as a statutory marriage.
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Common-law marriage and criminal law
Common-law marriage is recognised in Colorado, but it is often misunderstood. Two people are considered to be in a common-law marriage when they mutually agree to enter into the legal and social institution of marriage and then act in a way that demonstrates this agreement. In other words, they agree to be married and then act like a married couple. It is important to note that cohabitation does not automatically imply a common-law marriage, and there is no specific duration required for cohabitation to be considered a factor in determining a common-law marriage.
In the context of criminal law, a common-law marriage can be relevant in certain types of crimes that depend on the marital status of the parties involved. For example, if a person in a common-law marriage claims to be single, they may face fraud issues. Additionally, if an individual with a common-law spouse enters into a ceremonial marriage with someone else, they may be charged with bigamy.
When it comes to divorce, a common-law marriage is treated the same as a statutory marriage. To obtain a divorce, the parties must be presently married, and if a common-law marriage is found to exist, the divorce proceedings will continue as with any other married couple. However, if a common-law marriage is not established, the divorce case will be dismissed.
In estate litigation, common-law marriage can also play a significant role. Spouses have certain rights when their partner passes away, and a common-law marriage or lack thereof may impact a party's rights during probate and estate disputes. This could result in claims arising from the common-law marriage even after the relationship has ended.
In Colorado, same-sex common-law marriages are recognised under state and federal law, although there may be nuanced differences. The recognition of same-sex common-law marriages was established in LaFleur v. Pyfer (In re the Marriage of LaFleur), where the court held that such marriages could pre-date the legalisation of same-sex marriage.
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Frequently asked questions
The two major components necessary to establish 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 intend to get married and represent themselves to others as a married couple. There is no minimum time period for cohabitation.
You can prove a common-law marriage by introducing evidence at a hearing, such as witness testimony and documents. Examples of evidence of a common-law marriage include having the same last name, having joint bank accounts and/or loans, filing joint tax returns, and referring to each other as “husband,” “wife,” or “spouse”.”
To end a common-law marriage in Colorado, you must file for divorce. Colorado law provides for one standard divorce process, which applies to both traditional marriages and common-law marriages.
