Keith Mack
Common-law marriage in Colorado is a confusing topic for many as it is often misunderstood. Colorado is one of the few remaining states that recognize common-law marriage, and it is considered valid for all purposes, the same as a ceremonial marriage. Common-law marriage does not require any license, ceremony, or documentation to be legal, but it can only be terminated by death or divorce. To be considered common-law married, the couple must meet specific criteria, including being free to contract a valid ceremonial marriage, being at least 18 years old, and consenting to enter into a marital relationship. The court will consider various types of evidence to determine if a common-law marriage exists, and if there is a dispute, an evidentiary hearing will be held.
| Characteristics | Values |
|---|---|
| Legality | Common-law marriage is legal and binding in Colorado. |
| Recognition by other states | If valid in Colorado, other states must recognize it. |
| Termination | Common-law marriage can only be terminated by death or divorce. |
| Tax returns | Common-law spouses may file jointly if they filed jointly on their federal tax return. |
| Requirements | Both parties must be free to contract a valid marriage, be at least 18 years old, and consent to the marriage. |
| Evidence | Evidence of common-law marriage may include joint tax returns, an affidavit, joint bank accounts, registration as a married couple, etc. |
| Court hearing | If there is a dispute about whether a common-law marriage existed, the court will hold a hearing where both parties can testify, call witnesses, and present evidence. |
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What You'll Learn
Common law marriage recognition in Colorado
Common law marriage is recognised in Colorado, and has been since 1877. It is one of only 12 states that recognise such a union. A common law marriage is considered valid for all purposes and is the same as a ceremonial marriage in the eyes of the law.
There is no specific statute in Colorado that recognises common law marriages, but the state's courts have recognised them in the past. Common law marriages are not formally documented with a marriage license, but they are considered legal and binding. The Supreme Court of Colorado only requires evidence of marital conduct to make a determination on a common law marriage.
There are no time requirements for common law marriages in Colorado. A couple could cohabit for a month and be considered common law married, or live together for many years and not be considered married. The key factor is whether the couple intends to enter a marital relationship and shares a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation.
If there is a dispute about whether a common law marriage exists, the court will hold a hearing. The couple will be able to testify, call witnesses, and present evidence. If the court finds that a common law marriage exists, the case will proceed as any other divorce case. If the court finds that there was no common law marriage, the divorce case will be dismissed.
To reduce fraud, some private or educational institutions require proof of common law marriage, such as showing joint tax returns or filling out an affidavit swearing that a couple is married. However, an affidavit is not always sufficient proof for some courts.
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Requirements for common law marriage
In Colorado, common-law marriages are recognised by the courts and are considered valid, just like ceremonial marriages. However, determining whether a couple is in a common-law marriage can be challenging. The official decision is typically made by a judge during an evidentiary hearing, where the couple can testify, call witnesses, and present evidence. Here are the key requirements for a common-law marriage in Colorado:
Mutual Consent and Agreement
Both parties must mutually consent and agree to be married. This means they intend to enter into a marital relationship and share a life together as spouses in a committed, intimate relationship of mutual care, support, and obligation. The agreement to be married is the first requirement and is essential for a common-law marriage to exist.
Legal Capacity to Marry
Both individuals must be free to enter into a marriage. This means neither party should already be married to someone else or in a domestic partnership with a third party. Both must be of legal age (18 years or older) to consent to marriage. If either party is between 16 and 18 years old, they must obtain appropriate parental or guardian consent.
Conduct as a Married Couple
The couple must conduct themselves as a married couple. This includes references to or labels for one another, such as calling each other husband or wife. They may also present themselves as a married couple to the public and behave in a way that reflects their agreement to be married. This could include maintaining joint finances, registering as a married couple on documents, or sharing the same last name.
No Time Requirements
There are no specific time requirements for common-law marriages in Colorado. A common-law marriage could be established after a short period, such as one month, or it may never exist even after a long-term relationship. The key factor is not the length of time but rather the presence of evidence demonstrating the couple's mutual agreement and conduct as a married couple.
Evidence of Marriage
Various types of evidence can be presented to demonstrate a common-law marriage. This includes an affidavit of common-law marriage, joint tax returns, cohabitation, maintenance of joint bank accounts, registration as a married couple on applications or leases, use of the same last name, and other behaviours indicative of a married couple. While an affidavit is a simple form of evidence, some courts may require additional proof beyond the affidavit itself.
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Evidence of common law marriage
In Colorado, common-law marriage is considered legal and binding and it is recognised as valid for all purposes, the same as a ceremonial marriage. Common-law marriage can only be terminated by death or divorce.
Evidence of common-law marriage can include:
- Holding themselves out to the public as husband and wife.
- Maintaining a joint checking and/or savings account.
- Registration as husband and wife on applications, leases, contracts, registers, etc.
- The use of the man's last name by the woman.
- Filing joint tax returns.
- The woman referring to the man as her "husband" in her will.
However, it's important to note that no single piece of evidence may be sufficient to prove a common-law marriage. For example, in one case, a couple had signed an affidavit of common-law marriage, but the court of appeals found this insufficient, directing the trial court to consider all the evidence for and against the marriage.
The burden of proof falls on the person claiming the existence of a common-law marriage, and judges require compelling evidence to find that a relationship is a common-law marriage. The key question is whether the parties mutually intended to enter a marital relationship, and courts will consider the couple's conduct to determine this.
While not a requirement, filing a signed, notarized affidavit attesting to the marriage with the County Clerk and Recorder can provide documentation of a common-law marriage.
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Common law marriage termination
Common law marriage in Colorado is an alternative to a ceremonial marriage, where a couple obtains a marriage license and undergoes a ceremony. A common law marriage is established by the mutual consent or agreement of the parties to be spouses, followed by conduct that demonstrates this mutual agreement. This means that a couple is not considered to be in a common-law marriage based on the length of their relationship or cohabitation alone.
To terminate a common-law marriage in Colorado, death or divorce are the only options, just as with a ceremonial marriage. If there is a dispute about whether a common-law marriage existed, the Court will hold an evidentiary hearing where both parties can testify, call witnesses, and present evidence. If the Court finds that a common-law marriage did exist, the case will proceed as any other divorce case.
It is important to note that proving a common-law marriage can be challenging. While an affidavit of common-law marriage can be signed, it is not a requirement and may not be sufficient proof for the Court. The Court will consider various types of evidence, including the couple's references to one another (e.g., calling each other husband/wife) and their behaviour when the relationship ended. The timing of the common-law marriage claim is also relevant, as a claim made years later is less credible than one asserted promptly.
If you are unsure about the status of your common-law marriage or are seeking a termination, it is advisable to consult with a legal professional for guidance on your specific situation.
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Common law marriage disputes
Common law marriage in Colorado is a confusing topic due to the many misconceptions 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 mandated.
A common-law marriage is valid for all purposes and is the same as a ceremonial marriage. It can only be terminated by death or divorce. Common-law spouses have the same inheritance rights as spouses married by marriage license.
If there is a dispute about whether a common-law marriage existed, the Court will hold a hearing where both parties can testify, call witnesses, and present evidence. It is the job of the party claiming the existence of the marriage to prove it to the Court. If the Court finds that a common-law marriage did exist, the case proceeds as any other divorce case. If the Court finds that there was no common-law marriage, the divorce case will be dismissed.
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 (e.g., calling each other husband/wife). There is no single fact that proves or disproves a common-law marriage. The Court will consider all the evidence together. The first requirement of common-law marriage is an agreement to be married, so if there is no consent, there is no marriage.
In addition to cohabitation and the couple holding themselves out as married, the Lucero court set out various factors for courts to 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 inadequate, especially for same-sex couples. The key question is whether the parties mutually intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation.
In a 2018 decision, the Colorado Court of Appeals upheld a trial court determination that found no common-law marriage. In this case, the couple lived together (in separate bedrooms), ran a business together, and referred to each other as husband and wife to friends and co-workers. However, they filed individual tax returns and claimed to be single for insurance and Medicaid purposes. The documentary evidence trumped the witnesses, and the court found no common-law marriage. This decision echoes earlier rulings suggesting that documentary evidence is more compelling than witness testimony.
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Frequently asked questions
Common-law marriage in Colorado is a confusing topic for many because very few people understand what it means to be common-law married and who decides whether a couple meets the criteria for such a marriage. A common-law marriage is applied to couples who are in a committed relationship when said relationship appears to be a marriage but lacks the formal documentation that sanctions the marriage by the state (i.e., a marriage certificate).
The official decision is usually made by a judge. 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). The couple must mutually consent to be husband and wife, be free to enter into a marriage, and be of legal age (18).
An Affidavit of Common Law Marriage is a simple form that can be filled out at your county clerk's office. However, an Affidavit of Common Law Marriage might not be sufficient for some courts. If you have signed the affidavit but have not lived together or held each other out as married, some courts could reject it.
