What is Common Law Marriage in Colorado?

Common law marriage is a tricky thing. What constitutes a common law marriage? Does Colorado recognize common law marriages? What happens if you are common law married and decide to separate?

All great questions and ones I used to get a lot as a paralegal.

Let's start with what common law marriage is in general. Traditional marriage may include documentation such as a Marriage License or Marriage Certificate that indicates a date and even time of marriage. These documents do have differences, and it is important to know them. The biggest difference is that in many states a Marriage License gives parties the permission to marry. For example, a clerk at the clerk and recorder's office has reviews identification of both parties, takes their testimony of intent and assesses whether those individuals have the legal authority to marry. This may be, for example, making sure that the parties are not related. A Marriage Certificate, in some states, requires that a ceremony takes place to solidify the marriage. For example, some states will require that you have a ceremony that has an officiant.

But what if you don't have one of these documents? Are these documents required to demonstrate the validity of a marriage in Colorado?

No.

In Colorado, traditional marriages are recognized and when those couples separate, they go through a dissolution of marriage or legal separation process. This is straight forward. But what about couples that did not undertake the usual process of a traditional marriage (i.e. they did not obtain a Marriage License or Marriage Certificate and/or they did not have a ceremony, etc.)?

If this is the case, you may be dealing with a common law marriage. A common law marriage is when parties consider themselves married without a formal ceremony and/or documentation and/or have met certain legal criteria that deems them married.

Not all states recognize common law marriages. At the time of this post, the only states that full stop recognize common law marriages are Colorado, Iowa, Kansas, Montana, South Carolina, Oklahoma, Rhode Island, Utah and Texas. Some other states only recognize common law marriages if they meet certain criteria. For example, in Alabama, common law marriage can be recognized if it took place before 2017; in New Hampshire common law marriage is recognized, but only for matters of inheritance after one partner has passed away.

So then what are some of the criteria for determination of a common law marriage in Colorado?

The criteria for being common law married in Colorado is quite broad. The case law language used as a standard to determine whether or not a common law marriage exists is:

"A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship."

In other words, it is not required that you live together for any amount of time or even at all. It is not required that you hold any kind of ceremony. It is not required that you file taxes together, jointly hold property together or have joint bank accounts. These may be used as incidents that prove a common law marriage exists, but they are not required.

The only requirement, therefore, is that the two individuals hold themselves out as spouses. When I was a paralegal, here is some of the evidence that we used to prove that a common law marriage existed:

• Birthday or anniversary cards addressing the other party as "Wife" or "Husband"

• Text messages between the parties wherein they refer to each other as "Wife" or "Husband"

• Social media posts that depict or infer that the couple holds themselves out as spouses

• Witnesses that have heard one or both of the parties refer to the other as "Wife," "Spouse," or "Husband"

• Medical documents that name one of the parties as a spouse or where one party names themselves as the spouse of the person needing medical care

• Naming of one party as a beneficiary on insurance policies

These are only in addition to the more concrete evidence mentioned above. Some examples of that are:

• Co-habitation

• Jointly filed tax returns

• Jointly titled real property, cars, businesses, investment accounts, bank accounts, etc.

• Engaging in a marriage ceremony that includes witnesses of attendees and/or photographs

• Signing a document acknowledging a domestic partnership (usually for health insurance purposes)

What if there is a Pre-Nuptial Agreement? What if the parties are engaged? Do those constitute a common law marriage?

Often times the evidence of a Pre-Nuptial Agreement and/or engagement ring/proposal do not constitute a common law marriage. Rather, it signifies the parties' intent to someday marry. If this is the case, you can't be married now.

What about same-sex marriages? Can those be common law as well?

Yes.

Colorado recognizes same-sex marriages as being the same as heterosexual marriages. As such, both traditional same-sex marriage and common law same-sex marriage exist in Colorado and would require a dissolution of marriage or legal separation to dissolve that relationship.

So, what do you do if you find yourself in a common law marriage and need to dissolve the relationship?

One Judge recently noted during an ethics course I was in that in Colorado, you can be common law married, but not common law divorced. What this means is that if you are in a common law marriage in Colorado, the only way to dissolve that relationship legally is with a dissolution of marriage or legal separation.

If you are adamant about not being perceived as married in your relationship, there are a few tips I have heard attorneys give over the years:

1. Make sure to correct any and all reference or inference to you and the other party being married. This means that if someone calls your partner your spouse, you make sure it is known that you are dating/engaged/living together.

2. Do not, by text, verbally, in an email, or on any documentation, refer to the other party as your spouse.

3. Keep all accounts and property titled separately. If you share household bills, have a way to show that those expenses are split and each contribution comes from individual bank accounts of the parties.

4. If you live together, think about getting a Cohabitation Agreement.