Not every state legally recognizes a common law marriage so it can be complicated when these marriages end in divorce. Colorado is one of only a dozen states that still recognize these informal marriages as legal.
Even though there is no one law directly governing common law marriage in Colorado, there is language in the Colorado statutes that prohibits the repeal of “otherwise valid common law marriage between one man and one woman.”
On the flip side, since there is no such thing as a “Colorado common law divorce”, if a couple splits up they also must abide by the same laws and liabilities concerning a legal divorce or separation. In other words, if your relationship is considered a common law marriage in the state of Colorado and you want to end the relationship, you most likely are required to get a plain old divorce.
A divorce judge will still need to consider all the same factors presented in a written divorce. This may include child support, child custody, division of property, spousal maintenance and other matters that are commonly settled in the divorce process.
It is vital to have proof of common law marriage through joint tax returns, change of surname paperwork, or other documents because it is not an uncommon occurrence when ending a common law marriage to have one spouse claiming to have never been married at all. A Colorado Springs divorce lawyer can help establish the validity of a common law marriage in Colorado, and advise them on how to go about dissolving the marriage legally.
For couples in Colorado who choose to end their common law marriage, it is ultimately up the Colorado divorce courts to determine whether their marriage exists in the eyes of the law. However, there are some specific requirements outlined by Colorado courts.
How to Prove the Existence of a Common Law Marriage in Colorado
Here are some requirements for proving the existence of a common law marriage in the state of Colorado:
The couple must cohabitate.
A popular misconception about common law marriage is that the couple must live together for a certain period of time, often given as 6 months or more. This is not the case in Colorado. Although it is unlikely to happen, that means a union could be legally recognized as a common law marriage even if the couple only lives together for a day.
The couple must mutually agree to be married.
No ceremony of any sort is required to establish a common law marriage as long as both parties agree that they are married. This is, according to the state Attorney General, the single most important element of a common law marriage. So, if only one person in the relationship wants to be married, wishing doesn’t make it so.
A caveat here is that both parties must have the legal capacity to enter a marriage. In some states first cousins are not allowed to marry, but is not the case in Colorado.
For example, a person under the age of 18 has no capacity to marry without parental consent, and someone who is still legally married to another person does not have the capacity to marry until the first marriage is legally dissolved. The state does recognize same-sex marriage, so as long as both partners have the capacity to marry a same-sex common law marriage is possible.
They must openly hold themselves out to the public as “married.”
In other words, you have to present yourself as married to have a common law marriage recognized as legitimate. Presenting yourself as married may include actions such as wearing a wedding band or referring to your partner as “my husband” or “my wife.”
Providing proof of the above-mentioned requirements can be complicated, so unless both parties agree that they have a common law marriage, they will need to seek the advice of a Colorado divorce lawyer/attorney who is familiar with divorce issues related to common law marriage. This is especially important in cases where the couple has children or has acquired real property, such as a home or land together. When couples dissolve a common law relationship outside of the legal system they may later come to regret it when issues of child support or custody come up later on, so it is best to consult with a divorce lawyer sooner rather than later.
Ending a Common Law Marriage in Colorado
It is vital to have proof of common law marriage through joint tax returns, change of surname paperwork, or other documents because a possible conflicted in a common law divorce is one spouse claiming to have never been married at all.
In general, divorce courts will consider some of the following actions in determining the validity of a Colorado common law marriage:
- Whether the couple filed joint tax returns for Federal and State income tax
- Whether the woman took the man’s surname
- The listing of the other party on insurance forms and retirement plans as “spouse”
- Jointly held financial assets, such as property and bank accounts
- Whether the couple is known by their friends and family as “married”
While no one factor is considered paramount by the courts, filing joint tax returns is often regarded as one of the most important determining factors, since this means the couple is holding themselves out to the state and federal government as being married. If this were untrue, they would be exposing themselves to the penalty of perjury.
Typically, spouses in Colorado who have a common law marriage enjoy the same benefits as other married couples in the eyes of the government and military. However, some financial institutions and insurance companies require they provide proof of their legal marriage. This can include joint tax returns or a sworn Affidavit of Common Law Marriage.
If you have questions about dissolving a common law marriage in Colorado, consult with one of the experienced attorneys at Marrison Family Law in Colorado Springs.