The common-law elements of a valid marriage are that the couples (1) are free to contract a valid ceremonial marriage, i.e., they are not already married to someone else; (2) hold themselves out as husband and wife; (3) consent to the marriage; (4) live together; and (5) have the reputation in the community as being married. The single most important element under the common law was the mutual consent of a couple presently to be husband and wife.
In Colorado, our Supreme Court has also required that the couple hold themselves out to the world at large as being husband and wife. You did exactly that when you filed joint income tax returns claiming, under oath, you were married to each other. Once you are married, and married at common law is the same thing as being married by a judge, minister or rabbi, you need to get divorced before you are free to marry anyone else.
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By filing taxes with the IRS and the CO Department of Revenue as husband and wife, you held yourself out as being common-law married, like it or not. And you now need to get a divorce. Otherwise, you have committed tax fraud, which I would not wish on anyone.
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I think you want to marry some now and want to know if that is legal or permissible. You're concerned because you may have been common law married before and cannot be married to two women at the same time. The practical answer is get married. As a legal matter, common law marriage requires cohabitation and holding yourself out as married. Certainly, living together, having children and filing joint tax returns are strong indicators of a marriage, but other things may show you were not married, such a separate bank accounts, separate property ownership and telling people you are not married. A judge would make the final decision after a hearing. But as a practical problem unless your ex girlfriend wants to spend her time and money to prove you were married, it really will not be an issue.
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