Colorado Common Law Marriage Definition
In the state of Colorado, common law marriage is defined as a consensual marriage without a license and solemnization," or ceremony. It is defined as "any marriage recognized as valid by parties who may be entitled to the benefits of a formal marriage." To qualify as a common law marriage in Colorado, instead of simply cohabitating, there are very specific criteria that must be met.
While the exact definition of common law marriage varies in each state that recognizes this legal status, a common law martial relationship generally includes some requirements, such as:
In addition to meeting the above-listed eligibility requirements, the parties also must have cohabited full time for at least one year. Furthermore, the couple must have the intent to be married, making it clear to others that they consider themselves to be husband and wife . In Colorado, the agreement was forged in front of witnesses—with the witnesses being third parties—and there was no requirement that the agreement be in writing.
There is a relatively abundant amount of case law in Colorado that deals with the issue of common law marriage. The number one cited case regarding common law marriages is In re: Marriage of McNemar, 961 P.2d 596 (Colo. 1998). In this case, the Colorado Supreme Court listed seven factors to consider when determining whether a common law relationship exists:
However, in order to ensure that the couple carrying out the relationship also has the intention to be married, every factor needs to be considered. For example, one party may wear a wedding ring, but that does not mean that the parties intended to marry, as some parties may wear rings simply to keep people from asking questions.
Colorado Common Law Marriage History
Common law marriage, or a "marriage by agreement" as it is sometimes called in statutes and case law in Colorado, is the brainchild of common people and the Enabling Acts that created Colorado as a state spell out the circumstances under which Colorado became a common law marriage state as opposed to a state which required some sort of statutory marriage license. One of the key elements to understand about the laws on common law marriage in Colorado is that they have evolved over time, which is why you may see two or more different interpretations of that law. In interpreting the common law marriage statutes the courts have looked to following important aspects of its evolution over time: birth of Colorado as a common law state by virtue of the Enabling Acts; the 1953 Act of the General Assembly; the 1971 Act of the General Assembly (this is also known as the 1971 Family Law Reform Act); the 1987 Repeal of the common law marriage doctrine in Colorado by the General Assembly; and the 1987 Legislative Reversal of the voiding of common law marriages entered into prior to November 11, 1987 (Section 14-2-111 and 112 of the Colorado Revised Statutes). The Enabling Acts are the acts of Congress that admit a territory to statehood, and the area in which Colorado lies was first admitted to the Union with a provision that allowed marriages to be performed "by agreement". The Colorado Supreme Court first recognized that such marriages existed in 1887, and that determination has evolved along with our society as statutes and case law were entered upon. The Birth of Colorado as a Common Law State As previously mentioned, the Enabling Acts were the acts of Congress that allowed the territories of Colorado to eventually be admitted to statehood. The Enabling Act admitted Colorado to statehood on August 1, 1896. It was during the 1860’s (specifically 1861) that the first Enabling Act controlled the admission of what was then known as the territory of Colorado. The act of 1861 allowed for the establishment of a territorial legislative assembly. It also allowed for the establishment of a body of laws applicable to the territory. The 1861 Act stated initially that marriages would only be recognized that were solemnized in accordance with the laws and regulations then existing in Missouri, but that the marriage laws of Missouri would not prevent marriages by "agreement". The 1861 Act further provided that no other act, law or custom could prevent a couple from being married "by agreement", and that if a couple were to be married "by agreement" they could enter into and prove the marriage by either a witness or a court record. The first reference to a marriage by agreement in Colorado law occurred in the Enabling Acts with specific reference to the federal law. With the amendments to the Enabling Act changing from a requirement to comply with the laws of Missouri to a requirement of complying with the laws of the state of Colorado we see the birth of the common law marriage, and certainly the birth of common law marriage as it is respected by the court. Other Acts and Constitutional Issues There are other important steps in the evolution of Colorado common law marriage that should be touched upon briefly in this article. In 1953, the General Assembly passed the Act [Ch. 92, 1953 Colo. Sess. Laws 215] purporting to repeal the common law marriage doctrines and instead adopting a new statute covering marriage licenses and solemnization. In 1971, the General Assembly passed the 1971 Act [Ch. 341, 1971 Colo. Sess. Laws 913] which generally regulated the solemnizing of marriage. A direct challenge to Colorado’s common law marriage came early in 1987 when the issue was brought before the 10th Circuit Court of Appeals. The issue involved whether common law and ceremonial marriages were similarly situated. The 10th Circuit Court of Appeals held that they were not, and in turn the Colorado General Assembly passed legislation [Ch. 302, 1987 Colo. Sess. Laws 1436, modified by Ch. 336, 1987 Colo. Sess. Laws 1537], which abolished the common law marriage doctrine effective November 11, 1987. It was the 1987 legislation that spurred the legislature to amend the statutes to assist in the elimination of the common law marriage doctrine. Certainly in legislative response to the 10th Circuit Court of Appeals decision as well as the decision of the Colorado Supreme Court in In re Marriage of McCally, released by the Colorado Supreme Court in June of 1986, the General Assembly reversed the effect of the 1987 Colorado Supreme Court decision, and reinstated common law marriages entered into prior to November 11, 1987 [Section 14-2-110 through 14-2-112, C.R.S.A.].
Requirements for Common Law Marriage in Colorado
While establishing a common law marriage in Colorado does not require a ceremonial marriage, that does not mean that there are no requirements at all. In fact, Colorado courts have established six factors that must be present for a common law marriage to exist. These include: Mutual consent Intention Cohabitation Mutual and public assumption of the relationship Polygamy Competency Notably, these factors are not necessarily independent of one another. For example, an objective manifestation that each person wanted to be married can generally be found in a thoughtful and committed decision to marry in order to share all aspects of life together. Intention, therefore, can be demonstrated by a couple’s agreement to discharge their specific duties to care for one another as well as their intention to accept the legal benefits of marriage such as joint property taxes and health care. Cohabitation is required for legally binding agreements for marriage in Colorado, and an established residence, such as a home or apartment, is generally sufficient to demonstrate this requirement. Cohabitation can also be inferred from how long a couple has lived together, their engagement in domestic duties, their unhindered social life, and by the couple owning joint property and sharing joint expenses and financial responsibilities. While you do not necessarily have to file a certificate of marriage, this is still suggested.
Proving and Recognizing Common Law Marriage
When a common law marriage is disputed it can become very tricky to prove. In order for the court to find that a common law marriage exists, there must be proof that the couple intended to be married and that the couple cohabited and presented themselves to the public as a married couple. Often there will not be anything in writing regarding the existence of the marriage and the couple will be unable to provide the court with any type of valid marriage certificate.
Both parts of proof must have been established at the time the couple were living together to be considered "common law" marriage. The legislature does not make provision for after-the-fact provisions. NEW GENERATION ENTERPRISES, INC. v. LOSJOS, INC., 143 P.3d 1190 (Colo. 2006). The court may look to the following to determine proof of "intent": rental agreements, income tax filing status and insurance documents. With regard to "cohabitation" and presenting themselves to the world as a married couple, the court may look to the following: joint credit records, credit card records, bank accounts, executor of estate, shared living expenses, witnesses who can testify to seeing the parties together and/or hearing them hold themselves out as being married.
Common Law Marriage Rights And Obligations
Your rights and responsibilities depend on how your common-law relationship ended as well as ongoing legal obligations you may have toward your former spouse and your children. Despite the informal nature of a common law marriage, after the end of such a relationship, all the rules that apply to a legally valid marriage apply equally, and legal representation is crucial.
Property rights: As in a legal marriage, you and your spouse share property. The property was either acquired during the marriage or owned by one or the other of the spouses before the marriage. One spouse cannot unilaterally dispose of property unless it can be shown that this property does not constitute marital property. If you and your spouse are separated, you need to divide your property, but the law allows a certain period to finalize that separation before the division occurs.
Many people question the necessity of drawing up a cohabitation agreement prior to marrying. Without a cohabitation agreement, it is possible to agree as to who gets what when the relationship ends, but without a cohabitation agreement in place, it is also possible for one spouse to hide assets from the other spouse through intentional conversion of assets.
Inheritance: If you and your former spouse had property registered separately in case of separation, you may not be privy to this property after separation. When it comes to inheritances, inheritance laws vary from state to state so it is important to find a lawyer who is familiar with your state’s laws. In Colorado, your marital property is not seizable if you reside in another state and the state in which you were married does not share in that state’s property seizure laws. Colorado property laws do not apply to property not located in Colorado.
Legal decision-making: Some legal matters must involve both parties, such as permission for one parent to travel abroad with the children . The law requires notification of the other party, which cannot be obtained through a verbal request. A formal letter must be drafted and forwarded to the other parent.
Property Division Laws: Your property in a common law marriage is divided equitably, but that does not mean that it is divided equally. It means that the property division is divided in a way that is fair to both spouses, and the court will determine fairness based on the following:
1.FC 14-10-113: "In a proceeding for dissolution of marriage or legal separation, the court shall divide the marital property in such proportions as it deems just after considering all relevant factors, including:
a)The extent to which the property consists of marital property as defined in section 14-10-113.5.
b)The value of the property set apart to each party.
c)The duration of the marriage.
d)The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home, or right to live there for a reasonable period of time, as such property to the parent having physical care of any children.
e)Any increase or decrease in the value of the marital property during the marriage and the economic circumstances of each spouse at the time the division of property is to become effective.
f)The conduct of each party regarding any dissipation of property, abuse, or undue influence by the other.
g)The ability of each party to engage in gainful employment without unduly interfering with a minor child’s educational opportunities.
h)The party through whom the property or maintenance was acquired.
2.The court shall make provision for the payment of an equitable share of unpaid child support or maintenance that exists at the time of the decree to the obligee spouse when dividing the marital property. Property that is subject to a valid prenuptial agreement may not be included as marital property for purposes of division or maintenance.
Ending a Common Law Marriage
Dissolution of Common Law Marriage: A common law marriage can only be terminated in Colorado by death or divorce. The process of legal separation and divorce between parties who are deceased or separated after their common law marriage is the same as that for a formally married couple. In other words, dissolution of marriage in Colorado has no impact on a court’s handling of issues such as asset division, debt allocation, spousal maintenance, child support and allocation of parenting time. However, there are some issues that are unique to dissolution of common law marriages.
Common law marriage in Colorado needs to be proven to a court; this is unlike a formally registered marriage certificate, which is accepted as proof of the marriage. Proving a common law marriage exists requires that the parties submit evidence of their intent and cohabitation to the court. These are the same two elements required for parties to enter into a common law marriage. When determining whether the parties were cohabitating during their marriage, the court will examine the evidence. In the event of a dispute over whether the parties were actually living together, the court may require third party testimony.
If the parties were cohabitating, then in determining whether the evidence establishes that the parties intended to be married to one another, the court will need to consider evidence of the following:
If the parties can meet approximately half of these factors, then a presumption of marriage exists that will require the court to rule that a common law marriage happened.
A special consideration for common law marriages is that it is imperative that the parties to the common law marriage attend to their marital affairs until the marriage is actually severed by either spouse filing for divorce or physically separating from the other spouse to end the marriage.
Also, since common law marriages are created between two eligible parties, if one of the parties is legally disabled or mentally incompetent or the common law relationship is established while one of the parties is legally incapacitated, then the marriage will be considered voidable.
In a divorce proceeding, a court will be called on to determine how to annul the relationship between the parties and decide how assets and debts should be divided between them. The court will have to determine the value of community property, which includes all property that was acquired during the marriage. All property that is not subject to distribution includes property acquired prior to the date of the marriage, certain gifts and inheritances and property acquired after the decree of legal separation. Community debts, in addition to those acquired during the marriage, include debts that were incurred for the benefit of the marriage even if charged to an individual’s non-marital account.
Common Law Marriage Myths and Misconceptions
One common misconception people have is that living together for a certain number of years automatically results in a common law marriage. This is not true; partners do not need to cohabit for a set minimum time to establish a common law marriage. Many people associate common law marriage with being a couple that has lived together for years without ever marrying and do not recognize it as a legitimate relationship status. Contrary to that misconception, common law marriage is a recognized legal relationship similar to a formally registered marriage, but without going through the formal process of registering with the state. However, many people in formal marriages do not realize that they also have a common law relationship by meeting all the qualifications; this can become complicated during a divorce or child custody dispute. Many assume that common law partners have very few legal rights. However, they have many legal rights associated with property and finances in the event of separation, death, etc. Only a cohabitation termination agreement can negate those rights.
Legal Help and Resources
If you find yourself in a situation where you think you may have established or dissolved a common law marriage, it’s important to seek legal counsel to ensure your rights are protected. You can go in to any good attorney who deals with family law issues, but if you are up against a tough contested case , you may want to go with an attorney who specializes in this area of the law.
The Colorado Bar Association has a website that lists all the members and their practice areas. You can use it to search for an attorney who is well versed in common law marriage issues.
Also, if you want to try your hand at solving your common law marriage issue on your own, the Colorado Judicial Branch has put out various forms you can download and fill out yourself, such as:
These forms may be a good first step to determine if you have a viable case before you hire an attorney.