Disclaimer: Jessica K. Peck, Attorney at Law, LLC, welcomes you to explore the information we have provided below to help you gain a better understanding of the issues and challenges associated with common law marriage in Colorado. We hereby advise you that no information appearing herein shall be construed as legal advice on which you may rely. Finally, while we have made every effort to provide you with an accurate analysis below of Colorado law as it is at the time of this writing, please be aware that Colorado law is subject to constant change—including approximately 400 new laws added to state statute books every year. Thus, we cannot and do not attest to the accuracy of any information appearing below at the time you read this.
Under Colorado law, there are two types of marriage: first, a union codified under state law and recognized through a state-issued license; second, Colorado recognizes common law.
Q. How Do I know which type I have?
A. In most cases, it’s pretty simple. If you have a marriage license with your spouse, you’re married. The requirements for obtaining a license, as well as the rights and responsibilities of spouses, are codified under C.R.S. §14-2-106. Of course, marriages can be held void if there are issues of fraud or illegality. But in most cases, a license is all you need.
If you don’t have a state-issued licensed, but you can survive a legal test for demonstrating that you were married (see below), you have a lawfully recognized “Common Law" marriage.
Q. Why Does It Matter?
A. When a married couple (state-licensed) breaks up, they cannot be divorced without petitioning a court for a divorce. During the court process, and in most cases afterward, both parties are assigned a series of requirements, responsibilities and rights.
During a marriage, a couple maintaining that they have a common law union, may have to take extra steps to prove that they are actually married. While Colorado recognizes common law unions, many states don’t. Even within Colorado, there is frequent confusion on the rights of common law spouses when it comes to issues like decision making and employee benefits.
When it comes to divorce of non-licensed unions, however, the process can be very different. Both parties can always stipulate to the existence of their common law marriage. In such cases, a court will grant them the same rights and responsibilities as a licensed married couple. If one party objects to the other party’s assertion that the two were actually married, a Judge must make a determination as to whether the relationship qualifies as a common law marriage.
If it does, the parties are granted the same rights and responsibilities as any other married couple. If the court does not find that there was a common law marriage, however, many statutory requirements or legal presumptions are off the table and the court will evaluate important matters, including property distribution, maintenance (alimony) and future obligations of both parties, under a different set of standards. This analysis often includes significant ambiguities that can result in increased legal expenses and additional conflict between the parties.
Q. How Do I prove I have a Common Law Marriage?
Under Colorado law, several types of proof are considered in making the determination. The most important: cohabitation and representation to others that the couple is married.
Other types of proof: maintenance of joint accounts; purchase and joint ownership of property; mutual financial support of each other; registration as husband and wife on applications, leases, contract forms and hotel registers; use of the man’s surname by the woman; and filing of joint tax returns.
This list is not comprehensive, or alternatively, the examples above can be satisfied through a broad interpretation of them. For example, if the couple told some people they were married, but told others they weren’t, the court would need to then weigh the intent behind the parties in offering the conflicting representations to others.
Q. What can I do to protect myself from the prospect of a long-term or live-in girlfriend or boyfriend claiming down the road that we were married under common law?
A. Our firm can provide you with a co-habitation agreement, a document that with clearly express the mutual intent and obligations of both of you as to avoid any future conflict or misconceptions that you were common law married.
Q. Does Colorado Law recognize common law marriage after one of the spouses dies?
A. Yes, but in cases where common law is asserted post-death by the surviving spouse, it can often be tough to prove when third-parties actively dispute the assertion.
In such cases, probate and estate disputes can become much more complicated, especially when a will does not give guidance or the surviving spouse disputes the authority or authority of the will. Further, if the union is disputed by heirs or other individuals who claim to have an interest in the estate, disagreements are often fueled by emotion and anger, dramatically increasing the likelihood of conflict.
Q. Is it possible to protect my common law spouse and I from third-challenges to the existence of our marriage?
Yes. Our firm can assist you with ensuring that all of your rights are protected and that your marriage is recognized legally should you face the unfortunate prospect of divorce, disability or estate issues. Marriage is, after all, a contract. We can help you contract with your spouse (outside of obtaining a marriage license) to protect your rights as a couple, and also your rights individually.
Q. That seems like a lot of work. Why not just get a marriage license?
Certainly, there is a compelling case to be made that couples should take the simpler, traditional route of obtaining a marriage license from the state. But for many couples, a common law marriage may be more appealing for a variety of reasons, including but not limited to the following:
Moral or political objections associated with asking the government to approve or disapprove of the marriage.
When it comes to second marriages, many couples come to the union with memories of divorce from their first spouse. If a couple obtains a marriage license in recognition of their union, they will also be required to head back to the courthouse for a divorce if things don’t work out. With common law marriages, on the other hand, if no issues are contested and neither seeks legal recognition of the union for any purpose, it’s possible to dissolve the relationship without requiring legal recognition of the split as a divorce.
Convenience. Note: this rationale does not take into account our recommendations that common law couples recognize their union on paper, through legally recognized admissions of common law marriage. Otherwise, and as is increasingly the case, couples of all ages and walks of life are demonstrating an increased hesitation to traditional marriage altogether. Many common law couples take their relationship on a slower track than their state-recognized peers. The union and the commitment evolves more slowly, over a period of years, until the point where both spouses consider themselves—and represent to others—that they are married. To such couples, there often appears to be little need or desire to seek a license in conjunction with their desire to continue living the way they did before recognizing their relationship as a marriage.
Once a common law marriage is established (a process requiring either the stipulation of both parties, or a finding by a judge), to terminate the relationship the parties must conform to the requirements of the Uniform Dissolution of Marriage Act in Colorado. Note: this is the case in divorce cases, estate disputes, and a handful of other areas. If a couple lives as husband and wife without ever obtaining a license, however, and there are no disputes relating to the validity or existence of a marriage, it’s possible to avoid judicial involvement altogether, either while both parties are living or after one or both have died.
Finally, to summarize: once a common law union is recognized, the benefits received by one party as the legal spouse of another must also be applied without discrimination to a common law spouse.