LEGAL GUIDE
Written by attorney Brooke Lynn Alexander | Jan 28, 2019
By Brooke Lynn Alexander
Jan 28, 2019
Common Law Marriage FAQ's
Colorado is one of just a few states that continue to allow Common Law Marriages to form. All that is required in CO is that you consent to be married and hold yourselves out to be husband and wife. Learn more about what consent means and what it means to hold yourselves out to be married.
Where Can Common Law Marriages Be Created?
Common law marriages can still be created in nine places: Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Oklahoma, and the District of Columbia.How are Colorado Common Law Marriages Established?
In Colorado, common law marriages can be created at any time. There is no minimum amount of time that must pass before you can satisfy the common law marriage requirements.
The requirements to form a Colorado common law marriage are:
1. That you co-habitate;
2. Mutually agree to be married; and
3. Hold yourselves out to be married.
The agreement to be married does not have to be expressly made - or orally agreed to. Consent to be married can come from a variety of sources. Sharing bank accounts, filing taxes jointly, or signing an affidavit for health insurance through one spouse's employer are all examples of ways that you consent to be married. Both spouses must consent.
Consent can be found where you have a reputation of being husband and wife or married. If friend and family members believe that you are married, then you have created a scenario where consent to be married can be found. If one spouse uses the other's last name as their own on documents, that can also be seen as consent.
It is not necessary to have a ceremony to be common law married.Can Same-Sex Couples Be Common Law Married?
Common law marriages are recognized between same-sex couples too. Colorado prohibited same-sex couple from marrying. However, the U.S. Supreme Court's decision in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), which found such bans to violate equal protection, same-sex couples may marry the same as heterosexual couples. This decision applies to both traditional marriages and common law marriages.
In 2018, Colorado decided to recognize same-sex common law marriages that pre-date the Obergefell case. This means that if a same-sex couple meets the criteria for a common law marriage, the court will treat the marriage as being valid, even if it was entered into before 2015, when same-sex marriages were legalized.Where are Common Law Marriages Recognized?
Common Law marriages are valid in all 50 states.
Common Law marriages are recognized as being valid in all 50 states because all 50 states recognize legally created marriages in other states.
For example: you live in Colorado where you meet your significant other. You satisfy the elements of common law marriage in Colorado and then move to Wyoming where they have never allowed common law marriages to exist. You decide to separate from your significant other while you live in Wyoming. Wyoming must recognize your valid Colorado Common Law so long as your common law marriage satisfies the Colorado requirements.How Can I End a Common Law Marriage
Common Law Marriages can only be dissolved by Divorce.
Once a common law marriage comes about, it must follow the same divorce laws as a traditional marriage. The problem is that providing a common law marriage existed can be difficult since there isn't a wedding or marriage license that you can point to as the start of the marriage. Courts will look at things like financial history, living arrangements, notifying your employer of the relationship (including for the purpose of obtaining health benefits for a significant other), and when your community became aware that you were spouses.
In the event that one spouse dies, the other spouse is permitted to receive the same benefits as a traditional spouse would. However, it is more difficult for a common law married spouse to prove that the marriage existed.
It is important to speak with an attorney who is familiar with the elements and case law surrounding common law marriage, including the recent 2018 updates to common law marriages.Are There Any Defenses to Being Common Law Marriages?
The only defense to being common law marriage is that the marriage was illegal when it was formed. Examples of it being illegal are that one spouse was still married to someone else or one spouse doesn't consent.
Talk to an experienced attorney in your area if you believe that you may either be common law married or you need help defending against a common law marriage.
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