A Closer Look at Common Law Marriage
Common law marriage stands out from a traditional marriage by offering an alternative method of being considered officially married under Colorado law. Despite the lack of formalities such as a marriage certificate or officiant, a common law marriage is typically considered just as legally valid as a standard marriage, owing largely to the long-standing history of the practice. This applies despite how a person may feel about the concept of a common law marriage in the modern context, since it is nevertheless a very real legal possibility in Colorado. If an individual believes that they might be married under common law, it is often a good idea to seek out the counsel of a family law attorney .
The most common criteria that generally determine whether a common law marriage exists between two individuals includes:
Some people may have a very clear idea of their personal values and goals, leading them to exclude the concept of a common law marriage from their planning process. Alternatively, this may even be the case for engaged couples living together before an official ceremony takes place. This typically leads to planning for a civil union in Colorado, where a civil union is essentially a marriage between a same-sex couple under Colorado law with most of the same rights as a traditional marriage.
Legal requirements for establishing the existence of a common law marriage are challenging to navigate, even for experienced attorneys. If a person is able to fulfill these requirements, there is a strong possibility that their common law marriage will be recognized in the state of Colorado.
Legal Framework Governing Common Law Marriage in Colorado
Proving Common Law Marriage in Colorado: A Comprehensive Guide
For a couple to establish a common-law marriage in Colorado, there are certain legal requirements that are specific to this state. First and foremost, Colorado is one of the few states in the United States that recognize common law marriage. This means you have to establish cohabitation, intent, and mutual consent with your partner in order to be recognized as a common law couple. If you are trying to prove that you are a common law couple in Colorado, you will need to consult with an attorney to determine which factors apply to your situation.
The second important legal requirement that applies specifically to Colorado is the marriage license waiver. Most states require a marriage license for all legal marriages. However, in Colorado, there is a marriage license waiver law that empowers judges to approve common law marriages. The waiver also allows a couple who has never procured a marriage license to get a judicial order. In addition, the waiver can ratify and validates a common-law marriage that was performed before the judicial approval.
If you have never been married before, this is more important than ever. When you marry without a marriage license in Colorado, be sure to acquire a judicial approval that establishes your marriage as valid.
How to Compile Evidence to Establish Common Law Marriage
Common law marriages in Colorado can be difficult to prove. Even if a couple attempts to enter into a common law marriage, it does not mean it will be easy to prove should the relationship ever end in divorce or separation. The following are a few examples of evidence that will be needed to prove a common law marriage occurred.
Joint Bank Account – For a long-term relationship, a joint bank account does provide evidence of a common law marriage. In Colorado, courts will look at the relationship the couple had with the bank for the purpose of establishing a common law marriage. A couple who has a joint bank account should be aware of how this might affect their marriage. A joint bank account demonstrates to creditors that the spouses have some sort of mutual obligation and that creditors may not be able to collect everything from one spouse. Laws can vary by state regarding general creditor claims.
Shared Property – Shared property is another piece of evidence that indicates a common law marriage. The property could be anything from a car to a house. For example, Colorado is a community property state, which means all assets acquired throughout a marriage are considered part of the marital estate. But unless a married couple has a prenuptial agreement assigning property to a specific party upon divorce, Colorado can divide the property between the married parties fairly evenly. Anything that was created prior to the marriage is separate property. However, some states require another factor—consideration of property as one party’s change of circumstances. But in Colorado, an attorney can usually explain how property will be divested upon a divorce.
Common Legal Challenges and Considerations
When it comes to establishing the legitimacy of a common law marriage, several complications can arise, leading to disputes that may leave you scratching your head and feeling a bit frustrated. For one thing, there’s simply the challenge of gathering evidence that the marriage took place and was in fact a valid union. It’s not uncommon for one party to forget how or when the couple was "married," which can create a credibility issue right off the bat. Even if one party remembers the details, however, that doesn’t mean the other agrees, which opens the door for the possibility that they "married" for a period of time only to part ways before an official ceremony was held. Any witnesses needed to corroborate the facts of the marriage might be missing or be unwilling to come forward.
If you’re ever asked to prove your common law marriage, you might find opposing parties bringing up evidence of your generally single lifestyle. Maybe you had a joint bank account with another person (affecting a claim to a prior common law marriage with someone else) or lived at an address separate from your partner, for instance. Conversely, perhaps you moved in with your new partner while still legally married to your previous spouse, which could lead to conflicting claims. If you and your partner were registered to vote at the same address but also appeared on lists indicating you lived at different addresses, you could run into further complications.
Situations can become even more complex if you and your spouse are separating following a long-term marriage. One defined aspect of common law marriage that is generally seen as challenging to the courts is having children after the marriage took place. Unless certain factors apply, offspring produced following marriage at common law are not always considered legitimate. This can complicate visitation and parenting time issues, as well as the dissolution of marital assets. The record-keeping required to establish legitimacy can leave both legal and emotional scars on the children, for whom marriage is supposed to confer stability.
These are just a few of the difficulties that can arise when you need to establish the legitimacy of your common law marriage in Colorado.
Benefits Associated with a Determination of Common Law Marriage
In Colorado, couples who meet the legal requirements of a common law marriage enjoy the same status as a married couple:
Inheritance Rights – Inherit personal property from your spouse
Estate Claim – Bring a wrongful death or personal injury claim from the deceased spouse
Spousal Rights – Work Comp benefits, Social Security and Medicare benefits, health insurance, tax benefits , certain pension and health plan benefits
Tax Exemptions – Couples can file taxes as married individuals
Immigration – Spouses can fulfill residency requirements through their partner’s green card
Medical Decisions – Spouse can make healthcare decisions in case of an emergency
Alimony – Divorced spouses eligible for spousal support and other economic benefits granted to marriage
Divorce – Marital property and debts are divided in accordance with Colorado law
Social Security – Eligible for widower benefits and survivor benefits.
In short, if you have established common law marriage in Denver or another Colorado jurisdiction, you have the full rights of a legally married couple. The burden of proof is not large.
Practical Aspects of the Legal Process
Individuals navigating claims of common-law marriage in Colorado should stay informed and work closely with their Colorado divorce attorney to gather the information that will be needed to support their claim for legal spouse status. When it is disputed, proving a common-law marriage can be a matter of extreme importance. Often, when there are disputes about the validity of a common-law marriage, the parties cannot separate without going through a property division process. This can create additional issues in child custody matters, including concerns about the best interests of the child, which can complicate matters further. If there is a disagreement about whether a marriage truly exists, individuals should seek legal advice from a Colorado divorce attorney. A qualified attorney will be able to assist and guide potential divorce clients in learning what documentation and evidence they will need to collect to prove their status. Married couples and those asserting that they are married should be aware that they cannot achieve a divorce until they have legally terminated their marriage. Without proof of marriage, these individuals will not be able to reach property settlements or a divorce decree. Individuals in Colorado who are trying to navigate the legal system when they assert that they have a common law marriage should be aware of how to assert their claim. Officially asserting that a couple is married will require filing evidence with the Colorado Department of Public Health and Environment. The individuals may complete the affidavit affirming their common-law status or the individual may find a representative to complete the affidavit.
Recent Developments and Case Law in Common Law Marriage
In 2018, the Colorado Court of Appeals upheld a district court’s decision that the parties were common law married despite having signed a written "non-marital" agreement. Chacon v. Chacon, 2018 COA 145. In that case, the wife’s estranged sister filed a petition to determine whether the division of a military pension was appropriate. The husband contended that the parties had waived any claim to a marital relationship through their contract and separate estate planning documents. The district court held that there was a common-law marriage and that it was error to hold that the parties’ agreement negated it. The issue on appeal was whether an agreement can negate the existence of a common-law marriage. The court held that it cannot, and that there must be evidence of at least two "separate" estates, i.e., residence, financial accounts, etc. before the parties can contract to live separately and avoid a claim that they are married.
In Keyser v. Batey, 2016 COA 33, the Colorado Court of Appeals considered the extent of a domestic partners’ responsibility to provide financial support for a minor child born into a former relationship . The parties had entered into a domestic partnership shortly before adopting a child. The child’s biological father was ordered to pay child support in an amount substantially less than the child support obligation would have been for a family to which the home had been assigned but did not intend to be. At issue was whether the parties’ domestic partnership created a "family" within the meaning of C.R.S. §14-10-123(1)(c). The court of appeals held that a domestic partnership does create a "family" within the meaning of Section 123(1)(c) even though the parties had neither adopted nor intended to adopt the child. A domestic partnership is sufficiently similar to a marriage, and the social, economic and legal implications of a domestic partnership are sufficiently similar to a family unit, that the partnership falls within the statutory definition of a family. As such, an "equal obligation exists" under the statute between a parent and a second parent living in a family unit to contribute to the care and upbringing of the child.
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