Is There Common Law Marriage in Colorado?
Common law marriage is a legally sanctioned arrangement where a couple that does not have a formal marriage certificate may be able to establish the same protections and rights as a couple that married under a formal process. Long a common part of the culture in some states, the concept continues to grow, though hundreds of legal questions remain. Colorado is unique in the fact that, while many states do not accept common law marriages at all, Colorado has specific requirements for these arrangements to be legally recognized.
Prior to 1967, a common law marriage could be established in Colorado if parties to the marriage carried out the following actions:
• Reside together in Colorado
• Have the capacity to marry
• Hold themselves out to the public as husband and wife
• Have the intention to marry
In 1967, the legislative assembly adopted House Bill 1052, which further defined how couples could create a marriage without formalization through a ceremony or license requirements . It also established that common law marriage was not an acceptable basis for annulment, dissolution of marriage or legal separation.
Discussion on the legal validity of common law marriages has recently resurfaced. In spring of 2015, the Colorado Supreme Court heard the case of In re Marriage of M.M. and D.L.C., which asked the court to consider a lower court ruling that supported a claim that same-sex couples previously had the right to enter into common law marriages in Colorado prior to the legalization of same-sex marriage in the state. Legal arguments for this case hinge upon events taking place in the 1980s, prior to the legalization of same-sex marriage in Colorado.
Requirements of a Common Law Marriage
To be considered legally married in the context of a common law relationship, couples must meet precise criteria specified under Colorado law. These include cohabitation, mutual agreement, and public representation as a married couple.
First, couples must live together for some time. Cohabitation in Colorado is not subject to a specific time frame; however, understanding that courts are likely to look favorably at a couple who has cohabitated together for some time can help them avoid potential issues. A period of 12 months or more is generally a good choice for cohabitation. The second element of qualifying for common law marriage is mutual agreement to be married. In other words, both parties must agree that they are married, or that they are ready to be married. These two elements are purported to be independent from one another; evidence proving either is sufficient to establish marital status. The final element of qualifying for common law marriage is that both parties must represent themselves as a married couple to the public. This includes things like filing tax returns together, using the same last name, referring to one another as husband/wife or spouse, providing insurance benefits, and so on.
Common Law Marriage Rights and Duties
In a common law marriage, a Colorado lawyer will advise that both partners have the same legal rights as a traditionally married couple. In some ways these rights are even better, as in equitable division of property and spousal support.
Financial Contributions
As it is a recognized marriage in Colorado, under common law your property is a single marital estate, regardless of how each individual contributed financially to the acquisition of that property. For example, if one partner received an inheritance prior to marriage, that amount will still belong individually to them if the couple breaks up.
Division of Property
Likewise, if either spouse acquired anything during the marriage that cannot be considered part of the marital estate (such as a gift or an inheritance), then that will also be considered separate property.
Debt
Each spouse may be ordered to pay half of any debt that the other spouse incurs during the marriage. This is contrary to what a creditor may think. For example, if one spouse runs up credit card debt, the creditor cannot charge both spouses the full amount on the account. The creditor is entitled to only half from each spouse, regardless of who actually spent the money.
Alimony
Because partners in common law marriages enjoy the same status and rights as a traditionally married couple, divorce courts in Colorado may order alimony (as well as child support) in the same manner as a traditional marriage.
Ending a Common Law Marriage
When it comes to dissolving a common law marriage in Colorado, the process is essentially the same as that of a standard divorce. The parties can pursue a separation agreement if they are in agreement on how to resolve all the issues of their marriage, or they can go through the same litigation process that applies to traditional marriage dissolution.
It is important to note, though, that unlike a traditional marriage dissolution in which a division could be made in terms of assets and liabilities, the equitable division laws of a marriage that applies to a traditional marriage will not apply to a common law marriage. This means that any property brought into the marriage and owned prior to entering into the common law marriage is considered separate property and will not be subject to equitable division.
A downside of common law marriage in terms of dissolution is that property agreed on prior to a legal, binding divorce being decreed will not be recognized by the state. For example, if two people decide to have an informal, private separation agreement whereby it is agreed that the wife will keep the house and the husband will take her out of the deed such that she gets full ownership of the house, that separation agreement will not be valid in a court of law, and the husband can force the wife to give him half of the value of the house after the separation, even when he was the one that had a legal claim to the property prior to the marriage.
Because common law marriages use the same laws as a regular marriage in terms of grounds for divorce, the grounds for dissolving a common law marriage include impunity or insanity of one spouse; willful absence of one spouse for one year; failure to perform marital duties; conviction of a felony, subject to appeal; habitual alcohol or drug abuse; absurd marriage under C.R.S. 14-2-111; or physical impotence of one spouse at the time of marriage.
Proving Common Law Marriage in Colorado
While the existence of a common law marriage can be presumed upon showing the couple’s intent, there are still additional factors that can be used to prove an alleged common law marriage in Colorado. The primary evidence that can be used to show the existence of a common law marriage in Colorado is through the testimony of the parties themselves .
Other forms of evidence may also be used to show the existence of a common law marriage. Since proof of common law marriage is analyzed like a contract, circumstantial evidence such as joint accounts, joint tax returns, mutual friends, the couple’s joint reputation in their community as a married couple, shared expenses and debts and other such evidence may serve as additional proof if a couple’s intent is uncertain.
Issues and Myths Surrounding Common Law Marriage
Despite the legislative repeal of common law marriages in Colorado, this area of the law is not without confusion and contradictory information.
One of the most prominent beliefs of common law marriage is that it is only valid if you have lived together for seven years. The truth of the matter is that even in some other states’ laws that recognize common law marriage, so-called "seven year rule" does not exist. This is just one of several common misconceptions (as well as untruths) about the validity of common law marriages.
Furthermore, many people wrongly believe that to prove that they are in an illegal marriage with someone, they are required to go to court and file an action with the court to that effect. In Colorado, one does not have to legally challenge their relationship with a spouse. The burden is on the person who claims common law marriage to prove their legal status as such.
Another aspect of common law marriage that can be confusing for a lot of people both inside and outside of Colorado that actively acknowledge common law marriages, is the differing laws of those states. While certain states like Utah do hold that cohabitation is valid for common law marriage where you hold a "carrying on a marital relationship," Colorado’s law is significantly different, where the state requires that you hold two other items as above and that you are cohabitating as a "husband and wife."
Cases of common law marriage often involve individuals in a religious marriage. A common misconception is that this constitutes evidence of common law marriage. This is not the case in Colorado. Also, common law marriage in Colorado is not a religious institution. Certain states that recognize common law marriage require individuals to be legally married by a judge. For people who are already legally married, this is not something commonly associated with Colorado. If you are relocating to or within Colorado, one of the first things you may want to look at is family law. This is the mechanism by which common law marriage rears its head.
Even situations that some may consider the most obvious common law marriage can be subject to scrutiny and rebuttal. For example, say a person has lived with another person for 10 years, has purchased a home together, filed joint tax returns and behaved as one would expect a married couple to behave. Colorado law does not presume a marriage because a person has lived with someone for a long period of time, which is why it is so important that people establish proof of a common law marriage if they feel the relationship meets the requirements of the law.
Common Law Marriage: Legal Assistance
In circumstances where common law marriage is at issue, individuals are advised to seek counsel from experienced family law attorneys to navigate their legal status in the event of a divorce or death. An attorney can help in determining the existence of a common law marriage and the benefits and rights that may accrue.
Colorado Legal Services is a nonprofit organization that offers pro bono (free) assistance to individuals in Colorado through sixteen offices statewide. The Denver office provides eight different types of services including: family law matters, immigration matters, assistance to low-income people in the Denver Metro area , and various community education programs. They offer legal representation to low-income residents by matching them with equally low-income volunteer attorneys. The Colorado Bar Association also provides an attorney referral service to the public for persons needing Colorado legal advice and assistance from members.
As always, separate from the problem of leaving a common law marriage, it’s a good idea to have a marital agreement in place that covers issues like distribution of property in the event the parties separate, payment of debts during the marriage, or estate planning.