What is a Common Law Marriage in Colorado?
Common law marriage can be described as an "informal" type of marriage that does not require the same official wedding process as traditional marriages. In Colorado, there are six basic elements to common law marriages, and all of them need to be met for such a marriage to be legally recognized.
- Legal Age – the two parties must be of legal age to enter into a marriage (18 years of age).
- Capacity – both parties must have the mental capacity and understanding to enter into a marriage.
- Legal Intent – there must be a mutual agreement in which each party intends to enter into a marriage with the other.
- Cohabitation – the parties must live together for at least part of their relationship , as a married couple.
- Public Declaration – the couple must have held themselves out to the world as "married" (for example, by using the same last name, sharing a joint bank account, or referring to one another as "husband" or "wife").
- Belief – the parties must hold a good faith belief that they are legally married.
It’s important to remember, however, that even if all of the legal criteria above are met, a common law marriage could be invalid if one of the parties lacked legal capacity to enter into the marriage (e.g. one was under age or otherwise incapacitated). Plus, since a common law marriage does not follow the same official process as traditional marriage, it can be difficult to prove a common law marriage has been entered into.
Legal Requirements to Enter into a Common Law Marriage in Colorado
Before recognizing any common law marriage in a divorce context, a Colorado court will first look to the requirements of a common law marriage under Colorado law. A common law marriage in Colorado is a legal marriage just as valid, and protected under law, as any other. That said, it’s important to keep in mind that most unmarried couples in Colorado who live together, even with each other’s exclusive assistance, commitment and representations, are not in a common law marriage. In fact, the lion’s share of unmarried cohabitating couples does not possess the necessary requirements to create a common law marriage.
The Supreme Court of Colorado held that a valid common law marriage requires: 1) cohabitation; and, 2) a mutual agreement that the couple is married. The Court basically concluded that cohabitation is a presumption for a mutual agreement to marry. So cohabitation is evidence the couple is married. Cohabitation generally means more than just meeting for sex. It means more than a hotel room. Cohabitation means living together in some sort of permanence and stability so as to support a conclusion of a mutual agreement to be married.
The Supreme Court of Colorado has held that the following are other considerations to determine if the required mutual agreement to be married exists:
• The representation of the presenting parties to each other and to the world that they are married. See Atkinson v. Atkinson, 942 P.2d 1270 (Colo.1997). However, "[m]erely averring to be married, without actual performance or acquiescence, is not sufficient to establish a mutual agreement." McJamieson v. Reuben & Kaufman, 928 P.2d 835, 839 (Colo. App. 1996).
• The conduct of the parties towards each other. See Atkinson v. Atkinson, 942 P.2d 1270 (Colo.1997).
• Any other factors may be considered as evidence of the relationship in addition to the parties’ representation to the world that they are married. See McJamieson v. Reuben & Kaufman, 928 P.2d at 840-41.
Very few unmarried cohabitating couples possess the necessary marriage requirements. The Supreme Court of Colorado has gone so far to say that in all but "extreme" cases, "the only reasonable inference to draw from the presence of cohabitation in a romantic relationship is an attempt to hide the relationship from the eyes of the world." McJamieson v. Reuben & Kaufman, 928 P.2d at 845. Most cohabitating couples reside together for convenience, economic benefits, or the same reasons they would give for living with a roommate or a relative, not to avoid the public perception associated with getting married.
The burden of proof a common law marriage exists is on the party claiming the marriage. Henning v. Bell, 647 P.2d 669, 670 (Colo.App.1982). If the parties were not ceremonially married, the other requirements of a common law marriage must be shown by clear and convincing evidence. See In re Marriage of Perreault, 54 P.3d 897, 902 (Colo.App.2002).
Common Law Marriage Benefits & Limitations
Like all things in life, Colorado common law marriage can have its ups and downs. For instance, a very good thing about common law marriage is that the couple enjoys legal rights like a married couple such as the ability to make medical decisions for each other, inherit property, and file joint taxes. Financially, it also means that each spouse has a legal claim to property owned by the other spouse that is acquired during the marriage, so long as Colorado collects taxes on it, which they do. On the downside, Colorado law requires a trial court hearing whenever a common law marriage ends just like a full divorce. All of the property acquired during the common law marriage must be divided between the former spouses as if it were a divorce and could not be done with just a separation agreement. In addition, a common law marriage can make it very difficult to collect spousal support if the parties decide to separation rather than divorce. In order to have spousal support enforced by court order, the person seeking support must be able to say that they are married and a divorce case is pending before the court. In some cases, separation agreements can be used to enforce spousal support payments, but that is a complicated area of the law that should be discussed with an attorney before taking those steps. Finally, common law marriage can have a real impact on any social security payments a person is entitled to receive. Spousal entitlements to social security terminate upon a divorce or annulment. If the spouse is able to show that their spouse died during the duration of the marriage, social security payments can still be claimed even though the parties now live separately. But, social security payments can be lost or are significantly reduced when a spouse dies after they have separated but not divorced. In Colorado, separation does not terminate a marriage.
Proving Your Common Law Marriage
Sufficient evidence to prove a common law marriage may include documents from the time the parties lived together, such as mortgage documents, tax returns, bank statements, insurance documents, and the like. However, prospective clients are often surprised when reviewing these documents, because they do not have documentation proving they held themselves out as husband and wife. In fact, it is not uncommon for one of the parties to be married to someone else during the same time periods in which they were living with their present partner.
Witnesses commonly testify that the parties held themselves out as husband and wife. These witnesses often include friends, family members, co-workers, and members of their religious institution. In fact, the most compelling evidence of common law marriage in Colorado is likely a religious ceremony, e.g., a wedding ceremony, blessing, etc.
In some cases, a representative of a financial institution, or some other institution, may testify that the parties held themselves out as married , for example, on an application to open a bank account or obtain a credit card. Even strangers that learn the parties are living together may testify to the marital representation.
Intent and representation are crucial to establishing a common law marriage. Many of these witnesses will testify that the parties intended to marry each other, and that they held themselves out publicly as married. Other evidence, however, may show that only one party believes the relationship to be a marriage; for example, he or she has continued to pursue a divorce from another spouse, has not introduced his or her partner to family members as a spouse, etc. In short, the relevant evidence is that which tends to show how the parties intended to hold themselves out and actually did hold themselves out to the public, before and after the claimed marriage date. This is true even though, under current Colorado law, no particular period of time nor any singular act can establish a common law marriage.
Dissolution of a Common Law Marriage
Dissolving a Colorado common law marriage is similar in many ways to a traditional divorce proceeding. The dissolution process for a common law couple unlike for a couple that is officially married requires a lawyer and legal process. One of the most important considerations when a couple has registered their marriage in Colorado for divorcing a common law marriage is the allocation of property and/or debts. If a couple qualifies as common law married, then the divorce process will be the same. Lack of a common law marriage will affect both the outcome and the process of the divorce. It is important to discuss the previous financial matters of the parties with your attorney at the beginning of the dissolution process.
Effect on Estate Planning and Inheritance
The implications of common law marriage extend beyond the realm of divorce, especially when it comes to estate planning and inheritance. A common law spouse in Colorado enjoys many legal benefits equal to those enjoyed by formally married spouses, including rights in the event of the death of a spouse without a will. A surviving spouse is entitled to succeed to the deceased spouse’s estate under Colorado intestacy law, which makes provisions for a surviving spouse in the absence of a will or other estate plan. A surviving common law spouse of a deceased person in a common law marriage has specific rights under Colorado probate law . There are also provisions in Colorado probate law that provide specific rights to a surviving spouse who has been effectively disinherited by the deceased spouse’s will.
When it comes to estate planning, there are generally two main considerations with respect to common law marriage: the validity of a common law marriage in choosing a beneficiary for a retirement plan, bank account, or other asset; and the difficulty of "proving" a common law marriage, if one is disputed by a family member of the deceased. In the event that a common law couple legally marries during their relationship, choosing a spouse as a beneficiary has less exposure to being challenged by an after-the-fact marriage invalidation.