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What is considered "Common Law"

Aurora, CO |

If you lived with the person and had children with them but NEVER wanted to actually get Married... You filed taxes together.... were you Common Law married or ONLY if you agreed to be Common Law? Who determines if this is acknowledged with this definition? Do you have to get divorced If you had Parental responsibility already determined for your previous children, is this sufficient enough to get married to someone else?

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Attorney answers 4


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. This answer is provided as general information about a legal issue, is not legal advice specific to a particular case, and does not create a lawyer-client relationship with the person asking the question.


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.

The information provided in this answer does not create an attorney-client relationship. If you are interested in his legal services, feel free to call Chris at (303) 409-7635 at his law office in the Denver Tech Center. All initial consultations are free of charge.


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.

Answering this quetion does not establish an attorney client relation. The answer is for educational purposes only. You should consult an attorney for your circumstances.

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