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What is Common Law Marriage in Colorado?

Tuesday, 10 March 2015

Does it still really exist? I thought that went out with the dawn of automobiles!

These are just a few of the responses people make when they hear that Colorado still does recognize common law marriage. What most people thought was just a relationship caused by a couple living too far up in the mountains to get a justice of the peace a century ago is a very real thing for some people, and can have a drastic effect on property, inheritance, benefits and spousal maintenance.

What Technically Is Common Law Marriage?

A common law marriage can occur in Colorado if two people believe that they are married, and hold themselves out as married to the public. Yes, the obvious questions can come up, such as: "Don’t people have to go through some kind of ceremony to be married?"

Whether the ceremony takes place in a church, or before a justice of the peace, someone has to say those magic words that take a couple from committed partners to marriage, don’t they? That’s not the kind of thing that people forget.

Well, the way the law in Colorado and less than a dozen other states look at it, the whole issue is about the relationship and a couple’s belief that they are married, and what rights and privileges flow from that relationship.

So if two people are so committed to moving forward in life as a team that they buy a house, raise children, apply for insurance, complete taxes and take out loans together and hold themselves out as married much in a way that many married couples do, and believe that they are married, the state and its courts believe that there may be rights that should be protected.

But confirming whether a common law marriage exists in Colorado is far from straightforward. The help of a seasoned Colorado Springs divorce attorney can be critical in determining if a relationship satisfies enough of the criteria to prove that a common law marriage existed in this murky area of the law.

Common Law Marriage in Colorado

How Do People Actually Enter Into a Common Law Marriage?

If you look around the web, and even in some Colorado case law, you’ll see occasional references to the idea that there is no time requirement for common law marriage. It suggests that people could cohabit for as little as one day and be deemed in a common law marriage.

That kind of language is distracting. It may be interesting to discuss in the legal abstract, but rarely if ever likely to occur.

Instead, the simple fact is that courts require proof, and usually strong proof, that such a relationship existed. This type of proof would most likely prevent most if not all instances of people “falling” into a common law marriage, or backing into one unawares after cohabiting “just one day”.

What kind of proof do Colorado judges require? Well, first a common law marriage must satisfy the basic requirements of all marriages in the state, namely:

  • Must be between consenting parties at least 18 years of age.
  • Cannot be between first cousins (possibly unless too old to procreate).
  • That neither party can be married when the marriage began.

But then common law marriages in Colorado have to be supported by persuasive other evidence, which typically can be one or more of the following:

  • Both parties believed they were actually married;
  • The parties cohabited;
  • Both parties held themselves out to friends, family and the government as married;
  • The parties shared a common last name;
  • They bore and raised children with the shared surname;
  • They filled out joint federal and state tax returns as if a married couple.
  • They filled out loan application documents as if a married couple.
  • They purchased property as a married couple.
  • They applied for benefits as a married couple, such as health insurance.
  • Anything else that would show or prove a marital relationship.

There is no set Colorado statute, or any one Colorado case that says a common law marriage must have at least two or three of these criteria to be considered genuine. Every case is unique, guided only by the circumstances of the people claiming they were married, and the judge who hears the case.

In What Kind of Real World Situations Do Common Law Marriages Come Up?

Sometimes, two people are in a long-term relationship and break up after buying houses, having shared bank accounts, raising children and getting retirement accounts. But without a marriage, unless there was some other written arrangement, there is no expected or automatic split that divides whatever they have accumulated.

So a bank account just in the name of one “committed” partner might be snatched away entirely by that person, even if the other person deposited most of the money. Or a car that was purchased in the name of one person, but paid for entirely by the other person could be claimed entirely by the title owner.

Does it seem fair? Not really. Does it happen? Yes.

Another situation where common law marriage can arise is in death and inheritance issues. Two people may live together a long time, and all of their friends and family assume that the pair had married ages ago.

But in fact that little ceremony they said took place in Las Vegas 30 years ago never happened. They were just too embarrassed to tell their friends. So when the husband suddenly passes away in his mid-60s due to a heart condition, and he leaves no will, the grieving “wife” is confronted with two stark realities.

  • First, in order to qualify for social security death benefits due to her husband’s passing, she has to show they were married.
  • Second, the only way that she can claim a Colorado statutory share of his estate is if they were married. She needs help.

How We Can Help

Both of these situations can be financially devastating for one or both partners in a common law marriage. The stakes can be high, so it is important that people with questions about common law marriages get good advice from an experienced Colorado Springs divorce attorney who can gather the necessary information, and help put the best case forward.

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MPatMarrisonFor over a quarter century, we have helped people during what is often the darkest time in their lives. Divorce is not easy even under the best of circumstances. For most people, family is central. Having something go wrong in the family can have a ripple effect that extends beyond the home and into other areas.

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