Colorado is one of the few states that still recognizes common-law marriages. “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, 663 (Colo. 1987). If you cohabitate (for any duration) and you both mutually and consistently hold yourselves out as “married” and have a reputation as being married, then you have a common law marriage.
The “mutual” component means that you both have the intent to be married. The marriage is agreed upon and entered into by both of you; you may or may not have had a marriage proposal, engagement, or ceremony. Courts have found that a common law marriage requires steadfast, unvarying, and unwavering representation and introduction as husband and wife, so, your family, neighbors, co-workers, children’s teachers, etc. believe you are married.
The “consistent” component means that you claim a marriage exists for all purposes, and not only limited or just some advantages, occasions, or appearances. The courts have held that a common law marriage is not proven where parties hold out as married on only certain occasions where it is economically advantageous or there is a financial convenience, such as obtaining health or life insurance, but not for others, such as when filing income taxes and sharing bank accounts.
In view of the modern trend toward cohabitation without marriage, clear proof of intent to form a marriage is required.
How Long Does a Couple Have to Cohabitate for a Common Law Marriage in Colorado?
Some states set a prerequisite number of years that a couple must live together in order for the state to recognize them as married under common law, but in Colorado, there is no preset time requirement. While some couples may cohabitate for decades, the state does not recognize them as married if they do not mutually represent themselves as a married couple to others. Conversely, a couple could live together for less than a year and the state will recognize them as married if they mutually agree that they are husband and wife in a loving, supportive relationship, introduce themselves as such, and claim that a marriage exists between them for all legal purposes as well as for personal and familial reasons.
Couples who live together aren’t automatically recognized as having a common law marriage regardless of how long they share a home and a relationship. Their relationship only becomes a common-law marriage if they wish for this type of union and take the required steps, such as announcing themselves as married to friends and families, sharing accounts, and otherwise living as spouses.
Do Common-Law Spouses Have the Same Benefits as Traditionally Married Couples?
A recognized common-law marriage in Colorado offers spouses the same benefits as a traditional marriage with or without a ceremony and requires no license or officiant. Common-law spouses enjoy the following benefits of marriage:
- Sharing health insurance benefits
- Filing taxes jointly
- Receiving a spouse’s social security benefits after death
- Equitable distribution of assets and debts during a divorce
Once a common-law marriage exists, the spouses in the relationship enjoy all of the rights of marriage. The Colorado courts ruled it unconstitutional to discriminate against common-law spouses by refusing them the same rights and benefits afforded to traditionally married couples.
Just as common-law spouses enjoy the same benefits, the same requirements for marriage in Colorado also apply to same-sex spouses. For instance, they cannot be siblings, first cousins, or minors, and neither party can be married to someone else at the time that they enter into a common-law marriage.
Common Law Marriage and Same-Sex Couples
The test for determining whether a common law marriage exists as articulated by Lucero applies to same-sex relationships, but the test should be applied consistently with the realities and norms of a same-sex relationship pre-Obergefell v. Hodges 576 U.S. ___ (2015). In re the Marriage of Hogsett, 2018 COA 176. The Supreme Court holding of Obergefell applies retroactively to Colorado same-sex couples in deciding whether common law marriage exists between them.
The same parameters defining common law marriage for heterosexual couples also apply to same-sex couples. As long as both parties in the relationship are:
- Over age 18
- Not married to other parties
- Mutually consent to the common law marriage relationship
- Present themselves as married in all legal and personal situations
Common law marriage laws in Colorado apply equally to same-sex couples as heterosexual couples. Recently, the Colorado courts decided that same-sex common-law marriages created before the courts recognized same-sex marriages as valid should be recognized as if they were always valid. In other words, if a same-sex couple began living together, referring to themselves as spouses, and mutually considered themselves a married couple decades ago—in 1995, for instance—the state now recognizes their marriage as a valid marriage since 1995.
Evidence of Common-Law Marriage
While parties in a common-law marriage don’t have to formalize their relationship through a ceremony or in writing, in some circumstances they may require proof of their common-law relationship—such as when acquiring healthcare insurance. There are many ways to show evidence of a common-law marriage, including:
- Jointly owning property
- Sharing a joint bank account and/or credit card
- Sharing a residence
- Providing the birth certificates of any children of the relationship with both parties listed as parents
- Providing life insurance policies listing each other as beneficiaries
- Using documents showing that one spouse has taken the other spouse’s last name
- Obtaining affidavits from family members and friends acknowledging the couple as spouses
- Showing mail addressed to both spouses at the same address
Just as in some legal situations a formally married couple must show evidence of their marital status through their marriage certificate, there are times when common-law spouses may need documentation such as the above options as evidence of their common-law marital status in Colorado.
Do Other States Recognize a Colorado Common-Law Marriage?
When a relationship meets Colorado’s requirements for a common-law marriage, the marriage is also legally recognized in all other states if a couple travels or moves. Couples who move to Colorado from other states may need to establish themselves as common-law spouses in the state if they’ve moved from a state that doesn’t allow common-law marriage. If a couple married under another state’s common law requirements moves to Colorado, Colorado recognizes the marriage.
Only Colorado, Utah, Iowa, Montana, Kansas, Texas, South Carolina, Alabama, District of Columbia, Rhode Island, Idaho, Georgia, and New Hampshire currently have laws allowing common-law marriages to begin in their state, but all 50 states recognize common-law marriages beginning in the 12 common-law marriage states as valid.
Dissolving a Common-Law Marriage in Colorado
If you have entered into a common law marriage, then you are required to exit through an official dissolution of marriage proceeding. This will protect your interests and property and is the only way to avoid a claim of a longer duration of the marriage. It’s also required before you get married to someone else in the future.
Just as common-law spouses enjoy the same legal benefits of marriage as traditionally married couples, they also must follow the same legal process for ending the marriage. In order to prevent unfair asset division and problems with custody arrangements for the children of the relationship, common-law spouses must obtain a divorce decree in the state of Colorado with court directives for the equitable division of marital assets and debts, child custody, child support, and spousal maintenance when appropriate.
In some circumstances, a common-law couple could obtain an annulment rather than a divorce. For instance, if one party disagrees with the validity of the common-law marital status.
Legal separation in Colorado is another option for common-law spouses while they determine the future of their relationship. A legal separation offers most of the same protections of a divorce, such as the division of assets, child custody, and child support orders, while the couple still retains their status as a married couple.
Colorado Courts May Need to Make a Decision on the Validity of a Common-Law Marriage
In Colorado, a common-law marriage is a legally recognized marital status rather than simply the long-term cohabitation of a boyfriend and girlfriend or same-sex couple. In some circumstances, a court may have to make a decision on the validity of a common-law marriage by examining the evidence. A Denver family law attorney can help couples understand their rights and obligations under the state’s common-law marriage laws.