Understanding Common Law Marriages and Divorce in Colorado

Colorado is one of the dozen or so states in the U.S. that allows common law marriages. In general, a common law marriage is a recognized legal union that is formed through informal processes. However, although the marriage process is informal, the divorce process is the same for those in common law marriages as it is for those who were formally wed. So what does common law marriage mean? How do you establish one in Colorado? And, since only a handful of states allow them, are you legally married everywhere else? Let’s explore the topic.

Colorado Common Law Marriage Defined

Generally, marriage is defined as the legal union of two people. Once married, responsibilities and rights towards one another in the partnership are defined by the laws of the state in which they live. In contrast, a common law marriage is established by 1) the mutual consent of two parties to be husband and wife [a.k.a. an agreement to live as husband and wife], and 2) a mutual and open assumption of a marital relationship. This means that both spouses hold themselves out to the public as husband and wife. In Colorado, the marriage must also be valid under Colorado statutes. This adds the extra requirement that the marriage must not be prohibited. Prohibited marriages include:

  • Bigamy – one of the parties is married at the time of the marriage
  • Incest – a marriage between close relatives (sister/brother, ancestor/descendant, aunt/nephew, or uncle/niece)

Where are common law marriages recognized?

A state that doesn’t allow for common law marriages will still recognize one if it was properly formed in a state that does. For example, if you have been living together in Colorado for many years and then relocate to a non-common law marriage state before one of you dies, the laws of common law marriage will apply to the division of the deceased partner’s estate, and the surviving “spouse” will be recognized as such.

How do you know if you have a common law marriage?

You can establish a common law marriage living five minutes together, and even without living with each other. You could also live together for five years and not establish a common law marriage. According to People v. Lucero, 747 P.2d 660 (Colo. 1987), a common law marriage can only occur when all of the following factors are in play:

  • You mutually agree that you are married.
  • You publicly and openly hold yourselves out to the community as being married.
    • Generally, your community means your friends, family, neighbors, and coworkers.
  • Finally, the marriage cannot be prohibited under Colorado statute.

The judge will look at several indicators based on precedent cases to determine if a common law marriage exists. That being said, the judge doesn’t go through a checklist and determine the existence of a common law marriage just because they checked 17 out 23 indicators present. Rather, the judge will look over all of the indicators, factor in the quality and credibility of each, and make a judgment based on the overall picture. Some of the factors that indicate there may be a common law marriage are:

  • Taking your partner’s last name or using the same last name
  • Living together
  • Referring to each other as husband and wife
  • Filing joint taxes
  • Naming each other in insurance documents or other benefits
  • Holding joint accounts together
  • Holding joint property together
  • Cards and letters identifying the relationship
  • In today’s age, the judge will also look at how the parties hold themselves out to the public on social media!

No single one of these factors is enough on its own and even having all of them does not guarantee that you are in a common law marriage. It is for these reasons that it is a very good idea to seek the aid of an experienced attorney that knows the ins and outs of Colorado common law marriage.

Colorado Divorce and Common Law Marriage

If you have established a common law marriage then you need to go through a divorce in the same way as if you had been formally married. This means that if you are married by common law, you could be subjected to the same claims for property division and alimony as you would in a traditional divorce. This is true even if you have not been living together as husband and wife for many years. If you don’t want to become married this way, then it is a good idea to sign a joint statement that makes it clear it is not your intent to be married.

Common law marriage can be a murky legal situation and it is necessary to seek the help of an experienced family law attorney in order to determine if you have one. Hulbert & Associates is a seasoned law firm in handling all aspects of marriage and divorce in Colorado, including issues relating to common law marriage. If you have any questions about your common law marriage or divorce, contact us today.

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Written by Lori Hulbert

Together the attorneys of the firm have nearly 30 years of experience in the fields of estate planning, estate and trust administration, estate and trust litigation, guardianships and conservatorships and civil litigation.