Common Law Marriage is legal in Colorado, so what does that mean to you? If you are trying to assert that a common law marriage existed between you and your partner or if you are defending against a common law marriage claim, you should know in advance what the courts will look at to determine whether a common law marriage actually existed.
In 1993, the Colorado Supreme Court affirmed that Colorado has long recognized common law marriages. A common law marriage does not require any kind of ceremony at all but only the agreement of the parties, followed by mutual assent and open assumption of a marital relationship. Colorado is one of ten states that recognized the validity of common law marriage. Common law marriage is a term to describe a marriage which has not complied with statutory requirements necessary for a ceremonial marriage. A common law marriage may be established in Colorado as long as the persons are free to enter into a marriage, each person consents to the marriage, and the parties cohabitate.
The seminal case on common law marriage in Colorado dates back to 1987. In People v. Lucero, the Colorado Supreme Court held that a common law marriage is established by: (1) the parties’ mutual consent or agreement to be husband and wife, followed by (1) the parties’ mutual and open assumption of a marital relationship. See People v. Lucero, 747 P.2d 660 (Colo. 1987). The two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife. Specific behavior that may be considered includes maintenance of joint banking and credit accounts; purchase and joint ownership of property; the use of the man’s surname by the woman, and the filing of joint tax returns. However, there is no single form that any such evidence must take. Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred.
Mutual consent or agreement to be in a common law marriage can be manifested by conduct that gives evidence of the mutual understanding of the parties. Such conduct may be in a form of mutual public acknowledgement of the marital relationship, which is important and essential in establishing a common law marriage.
The courts recognize that the very nature of a common law marital relationship makes it likely that in many cases express agreements will not exist. The parties’ understanding may be only tacitly expressed, and the difficulty of proof is readily apparent. The existence of an agreement may be inferred from evidence of cohabitation and general repute. In such cases, the conduct of the parties provides the truly reliable evidence of the nature of their understanding or agreement. See e.g., Clark v. Clark, 229 P.2d 142 (Colo. 1951).
The Colorado Court of Appeals recently ruled that common law marriage applies to same-sex couples, See Hogsett v. Neale, 2018 COA 176. Any party alleging a common law marriage exists has the burden to prove the required elements by a preponderance of the evidence. A higher standard of proof is not required, but more than vague claims unsupported by competent evidence must be presented.
So let's discuss some of the evidence that will help you in proving or fighting against a claim of common law marriage:
1. Joint Taxes (filing status of "married," whether filing separately or not or lack thereof);
2. Joint Bank Accounts (or lack thereof);
3. Joint Property (vehicles, homes, timeshares, or lack thereof);
4. Insurance (life, vehicle, home, or lack thereof);
5. Utility Bills (or lack thereof);
6. Mail to same address (or lack thereof);
7. Joint Lease Agreements (or lack thereof);
8. Other proof you and your partner resided together (or lack thereof);
Holding Yourselves Out as Married in the Community:
9. Community Organizations Membership Enrollment as Spouses (or lack thereof);
10. Community Members Testimony of you and your partner holding yourselves out as being married (or lack thereof);
11. Facebook or other social media Relationship Status (or lack thereof);
12. Public statements of marriage (video recordings of birthday parties, anniversary parties, other types of speeches, or lack thereof);
13. Statements of marriage in any official documents, reports, police, schools, etc. (or lack thereof).
You should know that no one fact alone will be sufficient to prove or disprove the existence of a common law marriage. As such, you should gather as much evidence as you can to either prove of disprove a common law marriage. The party asserting a common law marriage has the burden to present enough evidence to show the court that more likely than not (by a preponderance of the evidence), or 51% out of 100%, a common law marriage existed. If the Court finds a common law marriage existed, the parties must go through a normal divorce through the courts like everyone else. Meaning one party could end up paying spousal support or "maintenance," a party could be entitled to the property of the other party (or if purchased before the common law marriage, the party can still be entitled to 1/2 of the increased value of the property). If the Court finds there was no common law marriage, the party contesting the divorce may seek reimbursement of attorney's fees and it is up to the court to grant such a request. If you need assistance filing or fighting a common law divorce, contact LEE | LAW.
Linda Lee, Esq.
501 S. Cherry Street,
Denver, Colorado 80246
*This article is written for educational purposes and does not serve as legal advice nor does it create an attorney-client relationship.