Entering Into Marriage

Colorado has two ways to enter into a marriage - follow the ceremonial procedure outlined by the Colorado Revised Statutes, or enter into a common law marriage.

Moreover, for those who are unable to marry, or choose not to, there are alternatives to marriage which afford some, but not all, of the rights of marriage.

 

Prohibited Marriages

Colorado no longer prohibits same-sex marriages. However, the state has age restrictions, depending upon whether the parties are entering into a ceremonial marriage or a Colorado common law marriage.

There are additional prohibitions in C.R.S. 14-2-110, which prescribes the following marriages:

  • Marriage when one party is still married.  (This would be bigamy, and under C.R.S. 18-6-201 is a Class 6 felony for the party who is still married, and pursuant to C.R.S. 18-6-202 is a misdemeanor for the other party who knows of the prior marriage).
  • Marriage between an ancestor and descendant, or siblings.
  • Marriage between an uncle & niece or an aunt & nephew.

 

Effect of Prohibited Marriage

In addition to the potential criminal penalties for bigamy mentioned above, a marriage which is prohibited is void, and therefore subject to annulment (declaration of invalidity of marriage) under C.R.S. 14-10-111.

Common Law Marriage

Colorado is one of a few states remaining which still allows parties to enter into a common law marriage, or a marriage without formal ceremonies.

"A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship." People v. Lucero, 747 P.2d 660 (Colo. 1987).

This is the classic definition of a common law marriage, but as relationships end, there are often disputes as to whether the couple had a common law marriage. There is no hard and fast rule as to what constitutes a Colorado common law marriage, nor even one law which directly covers it. 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."

 

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

coloradoattorneygeneral.gov.  Link to sample State of Colorado Affidavit of Common Law Marriage on the Attorney General's web site.  Note that an affidavit is not required, and this is not an "official" form, but simply a sample people can use if they like.

Colorado Common Law Marriage Requirements

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:

  1. Cohabitate,
  2. Mutually agree to be married, and
  3. 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!

 

Common Law Marriage Legal Effects

Spouses in a Colorado common law marriage enjoy all of the benefits of being married.  Legally, there is no difference between a married couple who went through a ceremonial marriage, and one with a common law marriage, and it is a violation of the equal protection clause of the U.S. Constitution to treat married couples differently based upon how their marriage was created.  Carter v. Fireman's Pension Fund, 634 P.2d 410 (Colo. 1981).

Moreover, thanks to the U.S. Constitution requiring states to give "full faith & credit" to other states' laws, a couple who were common-law married in Colorado are considered married by the federal government,  the military, as well as every state, including those which do not themselves authorize common law marriages.

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.

 

Restrictions on Common Law Marriage 

In 2006, as a response to a Colorado Court of Appeals decision holding that young teens could enter into a common law marriage, the Colorado legislature enacted C.R.S. 14-2-109.5, which provided two rules for common law marriages in Colorado:

  1. Each party to the marriage must be eighteen or older, and
  2. The marriage is not prohibited by C.R.S. 14-2-110.

Moreover, same-sex couples cannot marry in Colorado, since C.R.S. 14-2-104 explicitly provides that a marriage in Colorado can only be between one man and one woman, and Colorado will not recognize as valid any marriage performed outside of Colorado to the contrary.

Ceremonial Marriage

Colorado has adopted the Uniform Marriage Act at C.R.S. 14-2-101, et seq. So the Colorado statutory procedures parties must follow in order to marry may seem familiar to those who have been married in other states.

Ceremonial marriage is what most people think of when getting married, and contrasts to common law marriages, which are also recognized in Colorado. 

 

Procedures

  1. Marriage License.  The parties must obtain a marriage license from your local county clerk and recorder, providing basic demographic information.  No blood test is required.  If a party is divorced, proof of the divorce must be furnished.  C.R.S. 14-2-105.  Though both parties must sign the license, only one of them need appear in person to obtain the license.  C.R.S. 14-2-106.  The license fee in El Paso County (click here for more information) is $30.
  2. Solemnize the Marriage.  The license is void if not used within 30 days, pursuant to C.R.S. 14-2-107, so make sure it's solemnized in time.  Though parties typically have a judge or minister perform the ceremony, Colorado allows the marriage to be solemnized by a judge, magistrate, minister, or even one of the parties to the marriage!  C.R.S. 14-2-109.
  3. Register the Marriage.  The person who solemnized the marriage must complete the marriage certificate form, which must be forwarded to the county clerk & recorder within 60 days of the ceremony.

 

Marriage by Proxy

When one party to a marriage is not available to attend the ceremony, Colorado allows the marriage to be by proxy, which means that a third party stands in for the unavailable party.  C.R.S. 14-2-109(2).  The following criteria must be met:

  1. The absent party must be unable to be present,
  2. The absent party must consent to the marriage,
  3. The authorization ("proxy") must be in writing, and
  4. The person solemnizing the marriage must be satisfied that the absent party is unavailable and has consented to the marriage.

 

Age Restrictions

Colorado requires that each party to the marriage be at least 18 years-old, or at least 16 years-old if that party has the consent of both parents/guardians, or the parent with decision-making responsibility over the party.  C.R.S. 14-2-106.  Children under 16 years-old may marry with both parental consent, and permission from a judge.

Judges can approve a party who is 16 or 17 years-old providing that:

  1. The party's parents/guardian approves, and
  2. The court finds the marriage serves the best interests of the under-aged party (note that pregnancy alone does not establish that it's in the party's best interests to marry.

 

Penalty for Improper Marriage

Colorado law provides that it is a misdemeanor to attempt to knowingly violate the procedures and requirements for a marriage.  C.R.S. 14-2-113.

Breach of Promise to Marry

Can You Really Be Sued for Breaking Off An Engagement?

I was shocked to read an article in Courthouse News Service about a Georgia man being ordered to pay $50,000 for jilting his fiance. It really did seem a throwback to the past when women were regarded as second-class citizens, even as chattel.

In that case, the couple lived together and had a child together, then got engaged, with the man giving his fiance a $10,000 ring. In reliance on that promise, the woman quit her job to raise their child. The problem was that the man couldn’t stop cheating on his fiance, and 7 years after the engagement, when the woman confronted him about it, he threw her and his child out.

She sued, and the trial court awarded $50,000 in damages and attorney’s fees. A divided Georgia Court of Appeals affirmed the judgment. What's more, my research disclosed that Georgia is not alone.

What Are “Heart Balm” Torts?

A tort is simply a legal word for a cause of action. The so-called “heart-balm” causes of action read like they’re from the 19th century: alienation of affection, criminal conversion, breach of promise to marry, and seduction.

According to Divorce Source, there are still 9 states that have heart balm torts: Illinois, Hawaii, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah. However, I take this list with a grain of salt, as I've seen other lists with different states listed.

And the noted legal blog Volokh Conspiracy reported recently on a South Carolina case with a similar holding.  As recently as 2012, the South Carolina Court of Appeals affirmed in Campbell v. Robinson (S.C. App. 2012) that a 1984 decision, Bradley v. Somers, 322 S.E.2d 665 (S.C. 1984) is still good law. In theBradley decision, the court basically found that the appropriate measure of damages for breach of contract to marry were what the would-be bride when the marriage was broken off:

 "She is entitled to recover for the loss of the pecuniary and social advantages of the promised marriage. Also, her mental anguish, humiliation, and injury to health and psyche are elements of damages. In addition, she may recover for losses sustained from expenditures made in preparation of marriage. The jury may consider the monetary value of a marriage which would have given Christine a home."

Colorado Does Not Recognize Breach of Promise to Marry

In 1937, the Colorado legislature abolished "Heart Balm" torts by enacting C.R.S. 13-20-202, which states: "All civil causes of action for breach of promise to marry, alienation of affections, criminal conversation, and seduction are hereby abolished," and C.R.S. 13-20-203, entitled “Breach of Contract to Marry Not Actionable”, which states:

"No act done within this state shall operate to give rise, either within or without this state, to any of the rights of action abolished by this part 2. No contract to marry made or entered into in this state shall operate to give rise, either within or without this state, to any cause or right of action for the breach thereof, nor shall any contract to marry made in any other state give rise to any cause of action within this state for the breach thereof."

The Colorado Supreme Court upheld the constitutionality of this statute in the decision of Goldberg v. Musim, 427 P.2d 698 (Colo. 1967), in a case where a jilted fiance tried to claim that the legislature could not abolish his substantive right to sue for for alienation of affection. He lost.

Prior to the abolition of such causes of action, Colorado allowed this cause of action. One such reported decision is a 1909 case, Harrison v. Carlson, 101 P. 76, 45 Colo. 55 (Colo. 1909), where a woman sued her former fiance for seduction and breach of promise to marry. The court stated that seduction alone was not worthy of damages - the woman actually had to prove she suffered harm:

"It is not the mere fact that a plaintiff claiming to have been seduced under promise of marriage permits the defendant to have intercourse with her which entitles her to damages, but the shame, mortification, humiliation, subsequent status among her friends, and in society, the effect upon her future, and a variety of other circumstances naturally resulting from her seduction, which are to be considered in determining to what extent the damages arising from the refusal of the defendant to fulfill his promise of marriage have been aggravated and increased by his conduct in seducing her under promise of marriage."

While not a reported case, there is even a storied example of a Cripple Creek call girl suing famed Colorado Springs residence Spencer Penrose for $20,000 in 1805 for breach of promise to marry, claiming that he lured her to his bed and impregnated her. According to the book "The Colorado Labor Wars: Cripple Creek 1903-1904, A Centennial Commemoration" by Tim Blevins, et al, her case was dismissed.

Engagement Rings & Gifts Conditioned Upon Marriage

General Rule - Return Gift Conditioned Upon Marriage

There are very few cases in Colorado dealing with gifts conditioned upon marriage, and no reported Colorado decision actually involving engagement rings. But there is a body of law dealing with gifts in contemplation of marriage.

The seminal Colorado case is In re Marriage of Heinzman, 596 P.2d 61 (Colo. 1979). There, the man purchased a residence, and three months later, when the couple got engaged, he conveyed the property to the couple as joint tenants. Shortly thereafter, the woman moved away, and the man subsequently married another woman.

The trial court found that the residence "was a gift conditioned upon the subsequent ceremonial marriage", and that by moving away, the woman had abandoned the engagement. Accordingly, she was ordered to convey her interest in the residence back to the man.

The Colorado Supreme Court upheld that ruling, analyzing the issue nationwide and adopting what it found to be the majority rule:

"The majority rule appears to be that B must transfer back to A a gift received and held under the following circumstances: A and B are engaged to be married to each other. In contemplation of the formal commencement of that life of bliss A makes a gift to B. Later, through no fault of A, B breaks the engagement. The majority of courts reason that such a gift was conditioned upon a subsequent ceremonial marriage."

The woman argued that argued that Colorado’s "Heart Balm" statute, which abolished lawsuits for breach of promise to marry, precluded the man from getting the property back. The supreme court disagreed, holding that the act was intended to preclude lawsuits for the direct consequences of ending the engagement, such as humiliation, but did not preclude requiring the return of a gift conditioned upon marriage.

Is an Engagement Ring Conditioned Upon Marriage?

The issue in Heinzman was real property, not an engagement ring. However, it is hard to imagine a gift more conditioned upon marriage than an engagement ring, so the Heinzman rationale would almost certainly apply to rings as well.

Moreover, the Heinzman decision favorably cited out-of-state decisions in cases that did involve engagement rings, such as De Cicco v. Barker, 159 N.E.2d 534 (Mass. 1959), where the the Massachusetts Supreme Court stated: "an engagement ring is in the nature of a pledge, given on the implied condition that the marriage shall take place. If the contract to marry is terminated without fault on the part of the donor he may recover the ring."

Fault and Breaking Engagement

When it comes to divorce, Colorado is strictly a no-fault state. However, that is not the case with breaking an engagement.

Who keeps the engagement ring depends upon whose "fault" it was the engagement ended. If the engagement was broken off through no fault of the would-be groom, he is entitled to have his ring back. Examples of this may be if the woman simply fell out of love with him, or met someone else.

But the woman can keep the ring in the following circumstances:

  1. The man breaks off the engagement, rendering it impossible for the woman to perform the condition of getting married.
  2. Though the woman broke off the engagement, it was really the groom-to-be’s fault. But, as indicated, Colorado is a no-fault state when it comes to dissolution of marriage, so we do not have a current body of law which provides guidance as to what "fault" means.

Back when Colorado required fault to obtain a dissolution of marriage, grounds included adultery, abandonment, habitual drunkenness and mental cruelty. Presumably if those grounds are sufficient to end a marriage, if a man were engaging in that conduct now, the woman could probably break the engagement and keep the ring.

There is no decision on whether the flipside is also true - if the man breaks the engagement because the woman committed a crime against him, is she therefore the one at fault, so must return the ring? Common sense would say yes, but there is no reported CO decision on this point.

In the 20 years since Colorado has addressed the issue of a gift conditioned upon marriage, one article which has analyzed decision has concluded that a majority of states have moved on from fault, and now hold that an engagement ring must be returned, regardless of who was at fault. "This Diamond Ring Doesn’t Shine for Me Anymore: Who is Entitled to Possession of Engagement Presents when No Marriage Occurs."

Gifts to Married Woman Cannot be Conditional Gift

In Hooven v. Quintana, 618 P.2d 702 (Colo. App. 1980), a man lavished gifts on a woman who was still married to her husband, including buying her a car, paying her bills, and even her legal fees to divorce her husband. Their relationship subsequently ended.

The court found that it would violate public policy to recognize a gift to a married woman was a gift in contemplation of marriage, so the man could recover only the gifts he gave to her after her divorce was final.

Must Return Conditional Gift Even if No Engagement

In 1995 the Colorado Court of Appeals expanded the Heinzman ruling, applying it to any gift conditioned upon marriage, even if the parties never got engaged. Boydstun v. Loveless, 890 P.2d 267 (Colo.App. 1995).

There, as with Heinzman, the man bought a residence, then transferred it to a joint tenancy with the woman. The woman subsequently moved away.

The court held:

"Despite a formal engagement However, we agree with Keith that the trial court properly concluded that Heinzman is not limited to circumstances in which there is a formal engagement, a transfer of real property in contemplation of marriage, and the breaking of the engagement. Rather, in our view, the holding in Heinzman extends to a situation in which a joint tenancy is created as a gift conditioned upon subsequent marriage of the parties, and such marriage does not occur."

Interestingly, the issue of who was at fault for ending the engagement was not addressed in the court’s holding. The marriage upon which the gift was conditioned never happened, so the gift was deemed revoked and had to be returned.

Putative Spouse in Colorado

 

Per C.R.S. 14-2-111, a putative spouse is "any person who has cohabitated with another to whom he is not legally married in the good faith belief that he was married to that person..."  So the two important elements are (1) cohabitation, and (2) a good faith belief of marriage.

Putative spouse cases are few and far between - they are rare enough that most family attorneys, including this firm, have likely not litigated a putative spouse case, and there is also very little guidance from the courts on what facts are sufficient to establish someone as a "putative spouse".

The putative spouse statute may be thought of as a "fallback" in case someone has a good faith belief in marriage, but cannot establish the existence of either a ceremonial or a common law marriage.  However, a putative spouse should not be confused with the concept of palimony, where some states (not Colorado) confer financial benefits on a couple who end their relationship, even though the couple themselves knew they were never married.

 

Factors to Determine Putative Spouse

As indicated, there is very little precedent out there telling people when someone qualifies as a putative spouse.  This necessarily means that the outcome of each case will be very fact-specific.

The few cases there are agree on one point, however - if the would-be putative spouse knows that the other party is still legally married to someone else, he/she cannot have a good faith to be a putative spouse.  People v. McGuire, 751 P.2d 1011 (Colo. App. 1987).  And that applies even if the couple underwent a "celestial" or some other spiritual ceremony - a person cannot have two spouses, so knowledge of another marriage negates a putative spouse claim.  Combs vs. Tibbitts, 148 P.3d 430 (Colo. App. 2006).

However, if a would-be spouse who was unaware that the other spouse was still legally married has a putative spouse claim.  In Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo.App. 1983), the couple went through a formal wedding ceremony, lived together, and had a child.  But there was a problem - the husband was still technically married, as a California court had previously entered an interlocutory judgment dissolving that prior marriage, but that had never been reduced to writing, as required. The court found that the wife was a putative spouse with all the rights and benefits of a spouse, as she was unaware of the illegality of her marriage.

So who has a potential putative spouse claim?  Realistically, it's likely limited to someone who tried to marry, going through a marriage ceremony or meeting the common law marriage requirements and is seemingly married, but is unaware of the facts or legal barriers which would make the marriage void - such as a problem in the ceremony, or the fact that the other party were still married.

Here's a news article about a real-world example of what courts would likely treat as a putative marriage - a couple which went through a wedding ceremony back in 1964, but had apparently not complied with the marriage license requirement.  Unbeknownst to them, their "marriage" of the past 5 decades was not legal.

 

Legal Rights of Putative Spouse

Per C.R.S. 14-2-111, a putative spouse has all of the rights of a legal spouse, including maintenance, property division, etc.  However, if the other party actually has a legal spouse, then the putative spouse's rights do not supersede the legal spouse's rights.  Instead, the Colorado family law court "shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice."

Once a party learns that the marriage is not valid, he/she ceases to be a putative spouse, and does not acquire any further rights as a putative spouse from that time onwards.  Note that this does not take away any putative spouse rights already acquired, however.

The Social Security Administration recognizes a Colorado putative spouse, and confers benefits on a claimant who can establish her/himself as a putative spouse.  SSR 80-2.  But see PR05705.007 - the federal government is not bound by a determination from a Colorado family law court that someone is a putative spouse, and can substitute its own judgment if it believes that the state court was wrong.

 

More Information

Wikipedia article on Putative Marriage.