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 Lucero case outlines the basic criteria for a common law marriage in Colorado. The couple must:
- Mutually agree to be married, and
- Openly hold themselves out to the public as married.
Note that the "agreement" to be married need not be an "express" agreement - it is not common for a couple to execute a formal affidavit of common law marriage, or even have an agreement that they are married, which means 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.
Colorado Factors for Determining 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:
- Whether the couple hold themselves out as married to third parties, so have a reputation of being married,
- Filing joint federal or state tax returns,
- Listing the other party as a spouse on insurance forms or retirement plans,
- Joint finances, such as bank accounts, or owning property, and
- The woman taking the man's surname.
- Are there greeting cards referring to each other as boyfriend/girlfriend, or husband/wife?
- Did the couple go through any of the rituals of marriage, such as an informal ceremony, or wearing rings?
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.
Absent the couple agreeing that they were married, or having a unanimous parade of friends and family testify that they believed the couple was married, filing joint tax returns is widely regarded as the most important of the "objective" factors, since it means the couple is holding themselves out to the government, under penalty of perjury, as being married.
Hearing to Determine Existence of Common Law Marriage
If the couple disagrees as to whether they have a common law marriage, the Colorado family law court is required to conduct a hearing to determine the issue, at which the trial court will determine the facts based upon the credibility of the evidence. In re: Custody of Nugent, 955 P.2d 584 (Colo. App. 1997).
Note that judges scrutinize self-serving common law marriage claims carefully - they require pretty compelling evidence to find that a relationship is actually a common law marriage. As a court long ago said, "evidence to establish a common-law marriage should be clear, consistent, and convincing." Peery v. Peery, 150 P. 329 (Colo.App. 1915).
A Denver Probate Court judge remarked: "marriage is a banquet, not a smorgasbord." A person cannot pick and choose to call himself/herself married only when it's convenient, and then single at other times. So a party asserting a common law marriage claim likely needs something close to unanimity of evidence, and have not claimed to the contrary, to have a decent chance of success. Two documents claiming to be married, and one claiming to be single, probably means you're single!