Skip to main content

Am I common law married?

Longmont, CO |

Myself and boyfriend have been together for 3 years now, we have been living together for all 3 of those years. 2 of the years were in Virginia, which no longer recoginizes common law marriages. We have been in Colorado for a year now, we have a joint checking and savings account. Gym mebership, A townhouse with our names on it, bills with both our names on it, Im on his mothers car insurance, but we file our taxes seperate. We still use our own last names.
Im trying to figure out if the state views us as common law married, and when we do actually have a formal wedding next year, is it like we're getting married for a second time?
Is there a database that has lists of names for those married in the state? Or is it just a suprise? I see it says both parties have to consist to the marriage but I've heard of case where people dont know for years that they are married. Do they mail you a form of some sort? And how do they know how long we've been living together? I thought checking accounts were private information, I plan to marry him as he does I, but if we're already common law married, is there a need for a ceramony or could we just plan a reception? We filed our taxes seprate this year, if we're common law married did we file them wrong? Is that considered tax fraud even if we didnt know we we're common law married?

+ Read More

Attorney answers 3


Given the fact that you file your taxes separately (unless you file as married filing jointly), continue to use your own last names, and do not hold yourselves out to people as being married, it would be a difficult argument to make that you are common law married. However, there are NUMEROUS other factors that are taken into consideration and it is largely fact specific with how the two of you held yourselves out to the public. Plenty of people get common law married for tax purposes and then have an actual ceremony later. That does not mean that you are married twice.

I am not sure what you mean about a database being kept on married couples in the state. The marriage license is filed with the county. I was a former judge and had to file those with the local clerk and recorders office after performing a ceremony, because it requires the officiant in CO to file them. However, in CO, you actually don't need someone to preside over your wedding at all. So, there is no hidden registry and no surprise. I have no idea about people telling you that they did not know that they were married and found out years later. I have NEVER heard of that and that simply does not make sense in CO. Either you hold yourself out as being married and are common-law married or you have a ceremony. People don't find out that they are married by surprise in CO.

You don't have to file your taxes together if you are common-law married. They can be separate. The tax fraud comes in when you file as being married to get the tax advantage and you really are not married.


People do not become common law married without knowing it. You have to actually take steps evidencing your current agreement to be married in order to form a common law marriage - it doesn't just happen to you. However, it is true that many people don't understand the consequences of their actions.

Common law marriage in Colorado requires two things - 1. cohabitating as husband and wife (living together) in Colorado and 2. agreeing to be married.

Common law marriage is similar to a verbal contract. A verbal contract is every bit as binding (for most things) as a written contract - it is just harder to prove that it exists when there is a dispute. Similarly, a common law marriage is every bit as valid and binding as a cerimonial marraige entered into with a marriage license - it is just harder to prove that it exists when there is a dispute.

Factors such as filing of joint tax returns or holding yourself out (introducing yourself) as husband and wife are used as evidence to prove the agreement. The fact that you have a cerimonial marriage planned is actually evidence that you are NOT cuurently married.

If you and your fiance have not both agreed that you are currently married, have not filed legal or tax papers stating that you are married, have not filed insurance papers stating you are married, do not introduce yourselves as husband and wife, and are planning a wedding cerimony in the future, then you are not married. However, if the two of you are living together and agree that you want to be married right now, before any wedding ceremony, then at that point you are married and can start filing joint tax returns and doing everything else a married couple does. It's all up to the two of you.

You can reach Harkess & Salter LLC at (303) 531-5380 or Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.

Christopher Daniel Leroi

Christopher Daniel Leroi


Perfect answer as always by Mr. Harkess. Very thorough and complete.


Actually, there are three factors which must exists in order for you to become married at common law in Colorado. Mr. Harkess has accurately listed two of those factors. The third is that the two parties to the marriage actually held themselves out to the world at large as being married at common law. Filing "married-joint" income tax returns, declaring each other as your spouse on various documents, and introducing each other socially as "my husband" and "my wife" would satisfy this third factor and are also evidence of the first factor (the agreement to be married). Without some form of public acknowledgment, there is no common law married.

And, if Virginia does not allow couples to become married at common law, then you were not married at common law before you moved to Colorado.

Stephen Clark Harkess

Stephen Clark Harkess


There is a difference of opinion and ambiguity in the case law regarding whether holding yourself out as husband and wife is an actual requirement for common law marriage or simply provides evidence to support finding an agreement to be married. I read the cases to support the latter interpretation. Regardless, it can be an important factor in determining whether a couple has actually formed a common law marriage.

Family law topics

Recommended articles about Family law

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer