This legal guide acts to provide introductory information concerning Colorado jurisprudence governing the formation and existence of common-law marriages. This guide also discusses common evidentiary issues related to common-law marriage cases.
Introduction to Common-Law Marriage.Colorado is one of only a handful of states that still recognizes the existence of common-law marriage. People often mistakenly believe that someone is their common-law spouse because they have cohabitated for a certain number of years. Cohabitation is one of several factors, but certainly not the only factor in determining whether parties have entered into a common-law marriage. Many people live together for decades and are never common-law married. On the other hand, a common-law marriage may come into existence in a matter of hours! This is an extremely complicated area of family law and if you believe yourself to be part of a common-law marriage it is strongly encouraged that you consult with a licensed attorney to discuss the specifics of your circumstances so that you may make an informed decision on how best to proceed.
What Qualifies as a Common-Law Marriage?The analysis that has lead to recognition of common-law marriage springs from a view of the very nature of the marriage relationship. This view considers marriage to be a civil contract with only one essential requirement to its validity between parties capable of contracting: that being the consent of both parties. Hence, a common-law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by the parties' mutual and open assumption of a marital relationship. Colorado jurisprudence mandates that It is key to establishing a common-law marriage that the parties intended to be married and represented to others that they were married.
How to Prove the Existence of a Common-Law Marriage.If you file for divorce in Colorado and the other party disputes the existence of the marriage, the domestic relations court will likely set the matter for bifurcated hearings whereby an evidentiary hearing will be held first to determine whether a common-law marriage exists before setting the matter for trial on permanent orders.
A determination of whether a common-law marriage exists will turn on issues of fact and credibility of witnesses. More often than not, because the existence of a common-law marriage typically depends on a factual dispute and the credibility of several witnesses, a hearing is required for resolution of the matter. The person claiming the existence of the marriage has the burden of proof by "clear, consistent and convincing evidence" that the parties were common-law married. This is typically evidenced by a number of different documents and witness testimony.
Examples of some types of evidence of common-law marriage are: sharing a surname, cohabitating, sharing bank accounts, exchanging wedding bands, holding a ceremony for the wedding, designating someone as a "spouse" on a life insurance policy, listing the other party as beneficiary to your retirement accounts, filing a joint tax return as a married couple, or naming a party on a life or health insurance party as your spouse.
Getting Divorced from a Common-Law Marriage.One should be aware that there is no such thing as "common-law dissolution of marriage." If you are common-law married, you will have to obtain a formal decree of dissolution of marriage by filing for divorce in the domestic relations court. The divorce process for common-law married couples is the same as for those who obtained a marriage license. Often times individuals believe that if they simply stop living together their common-law marriage terminates and that is incorrect.
Do Colorado Courts Recognize Same-Sex Common-Law Marriages?Yes. Subsequent to the United States Supreme Court's decisions in United States v. Windsor and Obergefell v. Hodges, the prohibition against same-sex marriages ended. Because Obergefell must be applied retroactively, and because both the federal and state laws prohibiting same-sex marriage were void ab initio, nothing prohibits same-sex parties from entering into a common-law marriage at any time previously. Consequently, if you believe yourself to be common-law married you may now potentially avail yourself to spousal maintenance (alimony), child support, and property division in a divorce.