A Guide to Colorado Common Law Marriage
Common law marriage is the legal concept in Colorado utilized by Courts to find that two people are married without a formal marriage license or certificate. In order to be successful at proving that one is in a common law marriage, Colorado Courts have uniformly held that four requirements must be established:
- (1) the parties must hold themselves out as being married;
- (2) the parties must intend to be married;
- (3) the parties must live together in the state of Colorado as husband and wife; and
- (4) there must be a mutual understanding of the relationship of the parties.
Fitzgerald v. People, 228 P.3d 185, 188 (Colo. 2010) . The analysis of these requirements is not so clear cut. Where prior cases provided a laundry list of factors that aided in the analysis of common law marriage, Colorado Courts have recently taken a more personalized approach and the numerous factors that were considered in previous cases in fashioning the definition of common law marriage have now become guidelines. The Court also prefers a "case-by-case analysis of whether the evidence supports a common law marriage." Frazier, at 617; see also Linhart v. Omega Mfg., 731 P.2d 702, 705 (Colo. 1987) (noting the case-by-case approach to common law marriage under Colorado law).
Common Law Marriage in Colorado: The Duration and the Years
As I walk clients through the process of proving a common law marriage, oftentimes the most frustrating part of that process is the duration and the years that are necessary in determining how to prove up the common law marriage. The reason this is difficult for a lot of folks is that the years required to be married prior to separation do not necessarily need to be consecutive.
The Colorado Supreme Court has held that:
"Those living together after the determination of a common law marriage, are generally free to separate at will, and cohabitation after the period required to establish a common law marriage does not affect the subsequent virtual marriage, as long as that relationship is also extensive, exclusive, and permanent."
Therefore, the goal of the cohabitation can occur before or after the year numerical requirement of 3 years (or 2 years if you have a child in common) prior to separation.
In other words, in determining whether a common law marriage is valid, Colorado courts look not to years or specific periods, but rather to the general time period in which the parties lived together as husband and wife.
History of What Constitutes Common Law Marriage in Colorado
Historically, common law marriage has developed through a sparse array of cases rather than statute, or a combination of the two. The first Colorado case to apply common law marriage was McCarty v. Moore, 8 Colo. 554, 9 P. 247 (1887). In McCarty, the Colorado Supreme Court recognized that common law marriage contract could be formed where the parties resided in a jurisdiction that recognized common law marriage and then moved to a jurisdiction that did not recognize common law marriage – that is, that the validity of a contract of marriage depends on the law of the state of the matrimonial domicile. In response to McCarty, the Colorado legislature enacted C.R.S. § 14-2-109 which states: "(1) No common-law marriage shall be recognized in this state after July 3, 1987. (2) Nothing in this section shall affect the validity of a common law marriage which occurred prior to July 3, 1987. (3) A common law marriage shall not be deemed to have occurred solely on the basis of the age of one or more of the parties." The Colorado Supreme Court further clarified the common law marriage analysis in Farmer v. McKee, 118 P. 2d 645 (Colo. 1941). In Farmer, the court explained that for a common law marriage to exist requires the "same elements of the statutory union of husband and wife, except as such requirements are modified by the law of the matrimonial domicile." The Farmer court emphasized that "it is essential that the same relationship which is recognized by the statute shall be established by common law proof." The court also held that "the law of the matrimonial domicile governs the validity of a common law marriage." Id. In 1975, the Colorado Legislature further codified the law of common law marriage in C.R.S. § 14-15-201(1). Then, in 1987 the Colorado legislature abolished the doctrine of common law marriage in Colorado effective as of July 3, 1987. See C.R.S. 14-2-109(1). Numerous cases have considered the common law marriage issue since the 1987 legislative change. In 1994, Martinez v. Badis, 867 P.2d 37 (Colo. App. 1993), the Colorado Supreme Court modified the Farmer analysis by stating that the validity of a common law marriage does not depend solely on the law of the matrimonial domicile. The Martinez court ruled that Colorado and other jurisdictions are able to validate common law marriages that were entered into in other states, which did not have the common law marriage doctrine, based upon public policy even though a couple may reside in a state that abrogated its common law marriage doctrine. The court explained that Colorado should apply only those conditions to validate a common law marriage that are rationally related to the protection of important public policies of the state. Fortin v. Forting, 918 P.2d 665 (Colo. App. 1995), further modified Martinez with a closer assessment of the public policies underlying the Colorado legislature’s 1987 abolition of common law marriage. In Fortin, the Colorado Court of Appeals explained that the Fortin Court recognized a new common law marriage could not occur after July 3, 1987, but there was no evidence that the legislature intended to nullify the common law marriages that were entered into before July 3, 1987. In addition, Fortin explained that the Martinez court "implicitly considered the factors that coalesce to form a marriage, namely, proof of cohabitation and a current mutual intent to marry," and held those elements could be met despite the abolition of common law marriage in Colorado. Id. at 668.
Requirements for a Common Law Marriage to be Recognized in Colorado
The Colorado Uniform Marriage Act (C.U.M.A.) specifies that: "A common law marriage in this state is a marriage without a civil or religious ceremony, but established by the parties themselves in the manner provided by law." Colorado law does not provide a formula for determining when a common law marriage exists, however, courts have traditionally found that the following elements must be present:
- Mutual consent or agreement to enter a marital relationship alone, or with others;
- Cohabitation;
- Public representation as a married couple; and
- A general reputation obtained by the couple as being married.
In order to be legally considered a common law marriage in Colorado, these elements must all exist simultaneously and continuously for a period of time.
Evidence and Proof: Common Law Marriage Years Considerations
The key to establishing Colorado common law marriage years relies on documentation and proof. While on its face, simply cohabitating with your partner for a minimum of three consecutive years seems simple to accomplish, the fact that in order to validate the relationship, you will need to provide proof of your common law marriage years makes the process a bit more complicated than it appears at first glance .
While no one should fear the legal ramifications of "proving" or "disproving" a common law marriage, you will absolutely be required to provide an affidavit of cohabitation detailing the dates and proof of cohabitation; proof of joint financial accounts detailing deposits and withdrawal into and out of the accounts; affidavits from witnesses who have known you as a couple over several years; copies of bills and other documents received in both party’s names at the same address; proof of payment of previous joint debts; and other related items when and if a judge determines that you are in a common law marriage. If you’ve never opened a joint bank account because you simply prefer to keep your checking and savings separate, proving the relationship will be more difficult than if you maintain a joint bank account and have done so for several years.
The Pros and Cons of Common Law Marriage in Colorado
While the potential benefits of entering a common law marriage in Colorado can be numerous, so too can the challenges and obstacles that couples face. First and foremost, the protection of a marital relationship under Colorado law affords a level of assurance and security for both partners. This is particularly relevant in the event of a separation or divorce, as a common law marriage entitles both partners to equitable distribution of all marital assets and liabilities, considering their contributions to the relationship during the marriage. This can protect a partner from being taken advantage of or losing the fruits of his or her contributions to the marriage. Additionally, couples who enter a common law marriage in Colorado also enjoy the state’s laws surrounding inheritance, interspousal torts, tax benefits including the ability to file a joint return, and perhaps most importantly, hospital visitation rights. The ability to advocate for your spouse during a medical emergency is one of the most fundamental aspects of civil union.
For all of the benefits that a common law marriage in Colorado may provide, there are also some significant obstacles and challenges that a couple may face apart from the legal aspects. While enjoying protection under state law, relationships with friends and loved ones might become strained over the societal implications of a common law union. Although common law marriages are becoming increasingly prevalent and accepted, some people still have difficulty with the idea of a nontraditional union. Additionally, some couples may face difficult financial implications due to a common law union, such as student loans. In absence of a prenuptial agreement, student loans incurred during a couple’s common law period may be considered a shared marital liability, placing a burden on the party who didn’t create the debt in the first place.
While there are many benefits and drawbacks to a common law marriage in Colorado, it’s important to weigh the options and proceed with caution. While a common law union can be beneficial, its implications are equally complex and potentially detrimental.
How to Divorce a Common Law Marriage in Colorado
A common law marriage in Colorado has the same legal effect as a ceremonial marriage. When it comes time to end that marriage, parties can move to dissolve it in a court of law. This involves filing proceedings with the appropriate court similarly to divorce proceedings.
A district court in the Colorado jurisdiction where either or both parties reside has the authority to hold dissolution proceedings pursuant to C.R.S. 14-10-106. The proceeding must be in the form of a decree, just as a divorce proceeding is conducted. A legal separation may be converted to a legal divorce, and just as with divorce proceedings, the parties may enter into a separation agreement during or after dissolution proceedings are filed. Interestingly, no minimum period of time must pass and no test must be passed in order for a common law marriage to be legally terminated in Colorado, as may be required under the laws of certain other jurisdictions.
A common law marriage in Colorado must be dissolved in a court of law, even in situations where parties have lived apart from one another and do not intend to re-unite , even though they might consider themselves to be as good as divorced. A court order simplifying property rights and allocating property is one of the goals of a dissolution of marriage proceeding in Colorado, as is terminating the parties’ marital relationship.
All of the facts relating to property, however, might not be completely known forthwith, so the courts will make determinations on the property based on the information available at the time the determination is made. This basis, called a "tentative order", permanently allocates the property in the absence of further litigation or evidence by either party that something should be evaluated differently. If further evidence shows that the allocation was inappropriate, either party may ask for a pretrial conference to request a revision of the property allocation if additional evidence is shown.
Burden of proof in a dissolution of marriage proceeding or case concerning cohabiting married people is on the party trying to prove that the common law marriage does not exist. A spouse can argue strongly that a common law marriage does not exist in order to prevent the distribution of property if that party was not the owner of the property or had no legal right to any part of the property being allocated.