In the state of Colorado, a person may be considered married, even if they did not sign and file documentation with the State. When two people are considered “married” but they have not filed any paperwork attesting to their marriage, they are “common law” married.
Only nine states, and the District of Columbia, recognize Common Law Marriage: Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. Whether a person is common law married is a fact-specific question, and, unless both parties can agree that they were in fact married, it will be up to a family law judge to make this determination.
For a common law marriage to exist, the following conditions must exist: 1) Both parties must be over 18 years of age[i]; 2) The parties must agree that they are married; 3) The parties must cohabitate as a married couple after agreeing that they are married; and, 4) The parties must hold themselves out to be a married couple.[ii]
People v. Lucerois the seminal common law marriage case in Colorado. In Lucero,a claim of common-law marriage was invoked for the purposes of marital privilege during a criminal case[iii]. The case sets forth the standards that courts must apply when determining whether or not two people are common law married. Lucero establishes the requirement that there be some kind of “manifest conduct” which gives evidence to the mutual understanding that the parties are married.[iv]
Despite the beliefs of many, parties are not common law married just because: 1) They live together for any amount of time, whether six months, seven years, or twenty years; 2) They file taxes together; 3) They share a bank account or own property together; 4) They live together and are planning to marry; or 5) They are listed as beneficiaries on insurance or other assets.
While any of the above facts can be used in a family law court as evidence that the couple was in fact common law married, none of these facts is determinative as to whether a common law marriage occurred. Instead, the court must find that each of the four conditions was present for a common law marriage to exist. Each party should also be aware that the above factual situations could create other legal consequences, such as if a party has claimed they are married, and are now claiming not to be common law married. In this situation, one or both parties may have committed tax or insurance fraud. Given the legal complexities of these situations, a family law attorney should be consulted prior to a party claiming a common law marriage exists.
Once a court determines that a common law marriage does exist, all matters, including the division of the marital estate and awards of maintenance, is treated just like any other marriage. Sometimes parties believe they can simply state that they are no longer common-law married and rid themselves of the marriage. That is not the case. Should the couple wish to separate, they must go through the same legal separation or dissolution of marriage process as formal marriages, where a marriage certificate is involved.[v]
Common law marriage is a complicated legal issue that should be handled carefully. If you believe you may be common law married, you should speak with a family law attorney as soon as possible, ideally before filing anything with the court, such as a Petition for Dissolution or Response. At GEM Family Law, our seasoned attorneys can help you understand your rights and options surrounding your potential common law marriage.
Authored by: Meagan K. Moodie, Esq.
[i]SeeC.R.S. § 14-2-109.5
[ii]People v. Lucero, 747 P.2d 660 at 663 (Colo. 1987)
[iii]Id.
[iv]Id.
[v]C.R.S. § 14-10-101
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