Common Law Marriage in Colorado: All You Need to Know
Common Law Marriage Defined in Colorado
In Colorado, for a relationship to be legally considered a common law marriage, all of the following requirements must be met:
- The couple must intend to enter into a marital relationship (which is evidenced by a mutual agreement to be married).
- The parties practice mutual and public representations that they are married.
- The parties must cohabitate in the state of Colorado.
4 . The couple must be legally competent to contract and marry (both parties must be aware that they are entering into an exclusive relationship, must be of legal age to marry, or have parental consent to marry if they are below the legal age to marry without parental consent in Colorado).
Although it may appear to be a straightforward and easy list to check off to those who have been married in a conventional way, proving that these requirements have been met in any given case can be more difficult than one would think.
The History of Common Law Marriage in Colorado
In 1877, the Colorado Constitutional Convention rejected common law marriage due to concerns about fraudulent claims. A little over a year later, in 1878, the election of a new constitutional convention persuaded the legislature to allow common law marriage as a practical way to obtain marital rights. The legislature passed an amendment to the constitution in 1877, but that measure was rejected by popular vote. Concern among legislators and the public alike ultimately led to the death of the proposal in the legislature.
In the years that followed, legislators wrestled with the issue, and the interpretation and application of the statute governing marriage in Colorado changed constantly. The courts also struggled with the problem. The legislature finally authorized common law marriages in Colorado in 1882.
The validity of common law marriages receded after the 1950s. The legislature went back to the idea of marriage by ceremonial marriage, along with the potential for proxy marriages by several methods outlined in the state code. These methods include proxy marriages for absent military personnel, who sign a power of attorney in front of a notary or other officials, provides that "in the event [he or she] shall be absent from the United States at the time of [his or her] marriage," the other spouse "may execute the proxy authorization," allowing a designee to marry the spouse on his or her behalf.
A final section of Colorado Revised Statute Section 14-2-104, prohibits fee mediation for contested marriage licenses, which include proxy licenses. The section reads: "the clerk of the district court shall not charge more than the prevailing hourly rate for the person or persons preparing dissolution of marriage pleadings at the Colorado legal services or 16th street legal aid clinic."
Requirements for Common Law Marriage Recognition
Criteria for Recognizing Common Law Marriage in Colorado
When adjudicating the existence of a common law marriage, Colorado courts will consider many factors including but not limited to: (1) Cohabitation; (2) Child in common; (3) Agreement to be married; (4) Joint income tax returns; (5) Joint checking account; (6) Joint credit cards; (7) Joint or family phone plan; (8) Holding out as a married couple to others; (9) Address listed on forms and identification as married; (10) Physical care, support and education of children; (11) Sharing of household chores; (12) Jointly maintained household. The general rule is that the more indicia of marriage that is present, the more likely that there is an intention to be married. However, no one factor is dispositive, and the presence of any given factor under specific circumstances is to be liberally interpreted. The CO Supreme Court has held that things amounting only to meretricious cohabitation are insufficient to create a common law marriage. Initiation of a sexual relationship prior to a cohabiting arrangement created an evidentiary presumption that the relationship was not intended as a marriage.
Common Law Marriage Legal Consequences
Colorado recognizes the common law marriage, which is when a couple agrees to be married by meeting certain criteria such as sharing the same residence, mutually agreeing to be married and holding themselves out as a married couple. But does that mean you have the same rights and responsibilities as someone in a traditional marriage? The answer is yes. In Colorado, your common law marriage affords you all of the same rights and responsibilities as a couple who has obtained a marriage license, including property and financial obligations as well as spousal maintenance rights upon divorce.
When it comes to the distribution of property, you and your spouse will be treated in the same manner as a traditional married couple. That means anything purchased using either partner’s income or under their name, and anything received by either spouse as a gift or inheritance, is considered marital property and the court will divide it equitably upon divorce. The court will also consider any real property that is jointly held in both names as marital property. However, any property that was owned prior to the marriage or gifts to one spouse alone from someone other than his or her spouse may be considered separate. If you are in a common law marriage and want to protect your property, it is important that you have an agreement before the marriage that identifies each party’s property rights.
You and your spouse also have a duty to support one another, so if you enter into a common law marriage and any debt is acquired, both parties are equally liable. In addition, you’re expected to make certain financial decisions jointly.
In a traditional marriage, courts can award spousal maintenance, or alimony, to one partner or another after a divorce, based on a number of factors including the parties’ standard of living, the amount of property that has been awarded during the divorce, the duration of the marriage and the parties’ respective incomes. The same rules apply to a common law marriage, although spousal maintenance may not have been a part of your common law agreement.
Common Law Marriage Presentation of Proof in Court
Common law marriages in Colorado are handled with the same respect and authority as formally registered ones. There are laws on the books as regards how a common law marriage is deemed to exist, which brings us to how a common law marriage is proven in court. To start off with, there are two ways a common law marriage can be used in Colorado. The first way is via a divorce proceeding, which is the same way a formal marriage is treated when a couple splits up. In order to prove the existence of a common law marriage in a divorce case, either side has to produce credible evidence on the matter, providing the court with objective proof. The evidence needed is a preponderance of factual evidence because this is an evidentiary determination, meaning the weight of evidence is more important than the quality of evidence. The second way a common law marriage can be used in Colorado is via a lawsuit. Because this requires a party to prove the existence of a contract and a legal relationship , the parties have the burden of producing credible evidence before a court of law. A trusted legal professional in law and family matters can not only help party prove the marriage existed, but also assist in the discovery, preparing of documents and testimony necessary to successfully make that argument to the court. As for the types of evidence needed to produce a sufficient case for a common law marriage, this is often a he-said/she-said situation. That’s because unlike a formal marriage, there’s not likely to be an official license or paperwork in place to guarantee the legality of a marriage. This means evidence that’s often used to prove a common law marriage exists in a Colorado court includes the testimony of witnesses present at the marriage ceremony or wedding and others who can verify the relationship of the parties. Many times, this means the witnesses are called to provide evidence to the court in person, but other times it’s more appropriate to use affidavits or even photographs and documents signed by the owners of real estate and other mutual property.
Common Law Marriage Dissolution
A divorce of a common law married couple is the same as any other divorce in the State of Colorado if that couple ends their relationship. If you can show up at the courthouse with your marriage license and an affidavit swearing that you were common law married, you and your spouse will divorce in the same fashion as those who were legally wed through a civil ceremony. Your processes are essentially the same regardless of how you were married. You will file for dissolution of marriage in the county where you and your spouse reside or where you were married, and the court will divide your assets and debts equitably, and make similar determinations regarding child custody, child support, and spousal maintenance.
Common Law Marriage Myths
Common statistics suggest that almost 10% of Colorado residents are in common law marriages. With these sorts of figures floating around, it is not surprising that I get several calls each week from potential clients asking how to terminate their common law marriage. The truth is, however, that there are a lot of misconceptions and misinformed rumors about what exactly constitutes a common law marriage, when it is entered into, and how it can be dissolved.
The actuality is that there is no such thing as a single certificate or document that declares you "common law" married. The important facts are the circumstances surrounding your relationship and whether they all being considered together truly show that you and your partner intended to be married.
In fact, the historical concept of a common law marriage was born out of the frontier where common law marriage was a way for couples to express commitment to each other without engaging in the legal formalities of marriage licenses. Common law marriages were devised for protections of the woman in 19th century America when she had very little ability to acquire property for herself or to make contracts without her husband. While many laws have changed since then, the base concept of common law marriage has not deviated from the general structure of cohabitation and public display of intent to be married.
It is also very common for individuals to believe that simply living together for 10 -12 years constitutes a common law marriage. In fact, there is no strict "time line" that will qualify you for a common law marriage in Colorado, and you may also be deemed to be in a common law marriage within a few weeks of cohabitation if you otherwise meet the requirements. The Court will not accept a statement that you have lived together as a couple for 10 years without clearly defined actions within that time frame which evidence a mutual intent to be married.
One term frequently used (and misused) when referring to common law marriage is "palimony." In Colorado, this term is not recognized and does not apply to the division of property between two unmarried individuals. There are some states that recognize this sort of remedy; however, Colorado law simply does not recognize palimony actions. If you are part of a relationship where you and your partner have each contributed to the acquisition of property, and you can show that the property is really meant to be jointly owned, these contributions will be used to divide the property equitably. Much of this particular issue is fact driven, and no two situations are the same. Each partner should consider retaining a Colorado attorney to determine if this is an issue for his or her particular relationship.
Protecting Rights in a Common Law Marriage
To protect your rights within a common law marriage in Colorado and avoid future legal disputes, consider formalizing your union through contracts and other legal documentation. Since Colorado does not require common law couples to enter into a contract, there are no legally binding agreements that will guarantee your rights within the marriage. However, creating a prenuptial or postnuptial agreement may help delineate your rights before or after you enter into a common law marriage . Additionally, this documentation can help protect your assets in the event of a divorce. "Separation agreements" denote the contracts spouses create after their union has dissolved. Like a divorce decree, a separation agreement is legally binding and can help spouses determine how to split assets fairly — without going to court. If your spouse is not willing to enter into any legal contracts, you may need to have a conversation with a lawyer about next steps.