COLORADO DIVORCE & FAMILY LAW GUIDE

Colorado Common Law Marriage

Common Law Marriage in Colorado Introduction

Colorado is one of about a dozen states remaining which recognizes a common law marriage, or a marriage without formal ceremonies. There is no hard and fast rule as to what constitutes a Colorado common law marriage, nor even one law which directly covers it. Rather, C.R.S. § 14-2-104(3), part of the law which establishes the requirements for a Colorado marriage, simply states: "Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman."

It is up to the Colorado divorce Courts, with more than a hundred years of legal decisions to draw on, to determine whether Colorado will recognize that a common law marriage exists. The standard Colorado courts have outlined is that a common law marriage in Colorado requires that the couple:

1. Cohabitate,

2. Mutually agree to be married, and

3. Openly hold themselves out to the public as married.

Because proof can be complicated, unless both parties agree that they had a common law marriage in Colorado, they will inevitably need the assistance of a Colorado divorce or family law attorney who knows Colorado common law divorce issues.

Factors for Determining Colorado Common Law Marriage

Though living together (cohabitation) is required, no specific duration is necessary. This means that a couple which is clearly girlfriend/boyfriend could live together for 20 years without creating a common law marriage in Colorado. However, a relationship where the couple hold themselves out as married and intend actually to be married could be considered a marriage in a relatively short time. Here is a non-exclusive list of factors Colorado divorce courts look at when determining whether a common law marriage exists:

1. Whether the couple refer to themselves as married to third parties,

2. Filing joint federal or state tax returns,

3. Listing the other party as a spouse on insurance forms or retirement plans,

4. Joint finances, such as bank accounts, or owning property, and

5. The woman taking the man's surname.

No one factor is paramount, but typically claiming the other party as a "spouse" simply to gain a private economic advantage (health insurance, joint gym membership, etc), while potentially fraudulent, is not usually sufficient to establish a common law marriage in Colorado. A Colorado common law marriage is not simply living together or a casual relationship - it means the couple tells everyone they are married. Filing joint tax returns is widely regarded as the most important of these factors, since it means the couple is holding themselves out to the government, under penalty of perjury, as being married.

Spouses in a Colorado common law marriage enjoy all of the benefits of being married, in Colorado, other states, or in the eyes of the federal government, including the military. However, to prevent fraud, some institutions require proof of the common law marriage, either by showing joint tax returns, or filling out an affidavit swearing that a couple is married. Here is a sample Affidavit of Common Law Marriage.

Ending a Common Law Marriage in Colorado

Since there's no such thing as a Colorado common law divorce, if the couple breaks up, they also enjoy all of the rights, privileges, and headaches of a formal Colorado divorce or legal separation. Trying to remarry without a formal dissolution would be bigamy, and renders the second marriage void!

More Information

www.state.co.us. Information paper on Colorado common law marriages by the Colorado General Assembly's Office of Legislative Legal Services.

www.ago.state.co.us. Colorado Attorney General's information page on Colorado common law marriages

www.cdphe.state.co.us. The Colorado Department of Public Health Vital Records Section information page on solemnizing marriages and common law marriages in Colorado.

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