Common Law Marriage Defined
What is Common Law Marriage?
Even though there has been a trend in states to abolish common law marriage, it is still largely recognized in most states in the form of "marriage by cohabitation and reputation." As the name suggests, marriage by cohabitation and reputation can only be created through both the continuous cohabitation of a couple in an exclusive relationship as husband and wife and the widespread reputation among public officials and the community that the parties are indeed husband and wife. These two requirements are necessary to finding that a common law marriage exists.
Under Colorado law , a marriage by cohabitation and reputation does not require an official registration or certificate and can be legally binding even if the parties had no intent or belief that they were married. A couple can be found to be in a common law marriage even if one or both parties disputes its existence.
Historical Context of Common Law Marriage in Colorado
Section 14 of Article XXXI of the Colorado Constitution has been a part of Colorado law for much longer than any of us have been alive. This provision establishes that marriage in Colorado is a civil contract, which must be entered before a competent authorized officer or certified person. Because this provision existed as of the date of Colorado statehood in 1876, the Supreme Court of Colorado has described common law marriage as "a creature of contract" that co-exists with Section 14. The common law vestiges of the holding in Evans v. People (1887) and Bowen v. Murray (1895) have been done away with in Colorado.
The history of common law marriage in Colorado changed course following a landmark decision from 1971: Bodenheimer v. Bodenheimer. In that case, the Court suggested that "marriage by cohabitation under a mutual agreement to be married would be recognized in Colorado when the facts demonstrate the intent to create the legal relationship." At that time, the holding was without limiting date or temporal effect, and thus the Court seemed to endorse the common law marriage doctrine in full bloom in Colorado. However, within only two years, the Court reformed the common law marriage doctrine via the case Smith v. Smith (1973). It held that cohabitation alone was not an adequate basis for establishing a common law marriage, particularly when one party to the relationship had been coerced into the arrangement. The ruling in Smith v. Smith led the Court to revisit the issue of common law marriage in the context of whether it should be abolished entirely in Colorado.
Instead of leaving the law vague, and ripe for judicial reform, the Colorado Legislature passed a new statute in 1987: Colorado Revised Statute 14-2-109(3). By its terms, this statute provides that after May 1, 1987, "no marriage shall be contracted by means of consensual cohabitation alone." Thus, if prior to May 1, 1987 two individuals have acted in some way to establish themselves as a married couple, even if they were not legally married, the Court will permit that status to persist into modern domestic law disputes, as long as both parties’ legal rights are not impaired in the process.
In this way, the holding of Evans v. People (1887) and Bowen v. Murray (1895) survive to this day as applied to marriage prior to May 1, 1987, but since that time any relationship created purely by cohabitation is no longer recognized in Colorado via statute.
Common Law Marriage Requirements in Colorado
While there are any number of technical definitions of common law marriage, there are a few that really spell out the requirements. First, and most importantly, is that there be a mutual consent between the parties to be married. This means you both hold yourselves out to be married. If you go on Facebook and fill out a relationship status to be married, then that is an indication of the existence of a common law marriage. It is important to make the determination as to whether or not you are married, however, that you both hold yourselves out to be married. You also have to pretty much live together. We typically see cohabitation for a period of 10 or more years, but if you are only dating and holding yourselves out to be married, then it is likely that the court will say that you are only dating. Further, in order for a common law marriage to be valid it has to be for the purpose of being married. The general rule of law is that two people holding themselves out to be married do so because they are married and the purpose is for the marriage. If you do not hold yourself out to be married, then there is a good chance that the courts may not find a common law marriage to exist. During the 10 years, or however long you are together, if you are holding yourselves out to be married, engaged or otherwise, I guarantee that the conversation of marriage will arise. This is another important part of the analysis of whether you have a common law marriage, because the conversations and discussions you have will help determine whether or not a common law marriage exists. The purpose behind the creation of a common law marriage was to protect women, at the time, who did not have the requisite documentation to enter into a marriage relationship. Today, we see very few common law marriages granted by the courts, or otherwise, and often times it is a litigation matter.
Legal Framework of Common Law Marriage
A common law marriage in Colorado, while devoid of the formalities of a traditional ceremony, triggers many of the same legal rights and obligations that exist in a standard marital relationship. Colorado treats common laws couples the same as married couples for most legal purposes, which affects issues of property ownership, inheritance, and other legal responsibilities.
Property Rights
Just like the community property model for marriages, spouses in a common law marriage can share ownership of property acquired during the union. Property owned before the common law marriage is considered separate, but anything purchased after the relationship begins will be considered joint property owned equally by each spouse, regardless of whose name the title is in. The exception to this rule is if a spouse can show that a particular item is an exception, even though it was purchased during the marriage or received through a gift or inheritance. Title may provide some evidence of this, or a spouse might use receipts or other records to demonstrate property belongs solely to him or her.
Inheritance
The surviving spouse in a common law marriage in Colorado is considered the legal heir of the deceased partner. The inheritance rights of both parties extend to assets such as pension benefits, life insurance, and bank accounts.
Responsibilities
Both partners in a common law marriage are subject to the same legal responsibilities that exist within a traditional marriage, such as providing financial support for one another and not purposely damaging marital property. If a partner contracts a debt, the other spouse may be held liable for that debt.
Establishing the Common Law Marriage
Despite the fact that legal requirements for a common law marriage are considerably more lax when compared to a ceremonial marriage, there are still strict requirements of which both partners should be aware. In order for the union to be legally valid in the state of Colorado:
Once it established, both partners must understand their rights and obligations within the relationship. While new laws and societal values challenge traditional conceptions of relationships and marriage, it is important to understand how a common law marriage impacts your rights and obligations under the eyes of the law.
Establishing Common Law Marriage: Proof and Evidence
The proof and evidence needed to establish common law marriage in Colorado can be tricky. To establish that you are legally married under Colorado law, you must demonstrate the following elements: Under Colorado law, there are no specific documents or papers required to legally establish a common law marriage. By definition, a common law marriage does not involve a marriage license issued by a court, a marriage ceremony, or even a record of the marriage. The only requisite for a common law marriage is entering into an agreement to be married with present intent to be married. Because the elements of a common law marriage are somewhat abstract, you will need to review the evidence with your attorney to determine whether you have sufficient proof to establish a common law marriage . For example, many different kinds of documents can be used to prove common law marriage, including things like tax returns showing a spouse’s name, credit card contracts including both names, and insurance policies showing a spouse as an insured or the beneficiary. In addition to documents, a witness may provide testimony regarding the existence of a common law marriage, such as a friend who is willing to testify about seeing the couple live together as husband and wife. Finally, you may be able to establish the existence of a common law marriage through a statement from the parties to the marriage. Again, the evidence needed to prove common law marriage is not limited to only one of these methods, but often involves a combination of these methods. For this reason, you should consult with your attorney about your individual circumstances to determine the type and form of proof and evidence needed to meet your burden.
Dissolving Common Law Marriage
Dissolution of common law marriage in Colorado is achieved through a legal divorce proceeding just as traditional marriages are. However, common law marriage dissolution can become complicated if the parties have co-mingled their property or there is a dispute as to whether the parties actually qualify as common law married.
Similar to a traditional marriage, a decree of dissolution may be granted in Colorado – Divorce where there is no minor child (although that is not necessary), and if the party files the Summons and Petition for Dissolution with the Court, and the parties have reached a Separation Agreement dividing property, debts, and any issues regarding spousal maintenance. Traditionally, the petition must state the date and place of the marriage, the ground(s) for the divorce, whether or not the Wife has returned to her maiden name, whether the Wife is pregnant, the jurisdictional requirements for filing, and whether there are any minor children.
It may also be granted in a Proceeding for Declaration of Invalidity of Marriage in cases where the marriage is voidable. These cases are fairly uncommon and are only granted in limited circumstances. An example would be a party marrying where the other spouse had a spouse still living, or when a party does not have the capacity to consent to a marriage. A big difference from a traditional divorce proceeding is that a common law marriage cannot be terminated right away, as there are only "voidable" marriages in Colorado. A marriage is voidable if it is a valid marriage on its face but is not valid because of some defect. In this case, the Judge will not issue a decree dissolving the marriage, just an order declaring the marriage invalid, and it will be as though the marriage never existed. A declaration of invalidity of marriage may be granted as long as the petition is filed within 90 days of the date of the marriage and only after the court has determined that no more than 90 days have passed since the petitioner discovered the grounds for seeking the declaration of invalidity of marriage.
If a declaration of invalidity is sought before the 90 days is up, it may be dismissed without prejudice to re-file after the 90 days is up. If the relationship is still ongoing, then the matter can be held in abeyance pending a further hearing at some future date.
In the event that the parties have a disputed property division but a mutual desire not to contest the existence of the common law marriage, they may also file a Declaratory Judgment Action asking both to remain as "married" during the pendency of the case—even if the Court later determines that the marriage did not turn out to be common law. This is rarely done, but is theoretically possible. Because a third-party action may be brought by creditors who are seeking to foreclose a lien against a home titled in both names, and the death of one party who has not named the other as a beneficiary of his or her estate, such an action is possible. If the parties do not consent to dissolve, the matter must be set for trial.
Common Law Marriage Myths
Common Law myths are abundant in Colorado, and those who believe the myths may be entering into "common law" relationships unwittingly. Here are some common misconceptions versus the factual breakdown:
The fact is that common law marriage candidates must intend to enter into a marriage and cohabitate for a significant period. A brief relationship in which no promise to marry was made and the cohabitation was purely temporary in nature likely will not result in a finding of common law marriage. If parties are holding themselves out to the public as married (i.e. having a joint tax return, referring to him or her as husband or wife, etc.) then this is a factor that will be examined, but it is only one of many factors that a court will consider. There is no set number of years that is required. Again, a significant period of time is necessary so if the relationship is clearly intended to be temporary, such as a summer love where both parties plan to go their separate ways in a few months, it is less likely that the court will consider this a "common law" marriage. Although a domestic partnership is not the same as a common law marriage, Colorado’s domestic partnership law does allow for same-sex couples to enjoy certain of the benefits previously reserved for common law marriages. Therefore, if a same-sex couple has a legal domestic partnership, they do not also have a common law marriage. No. Both are legally recognized marriages with full rights and duties. The only distinction between the two is that a common law marriage is created by the actions of the parties. In contrast, a ceremonial marriage is created by meeting the legal requirements outlined above.
Recent Developments in the Law and the Current Landscape
While Colorado has not recognized new common law marriages since 2001, existing common law marriages are still treated by the law as legal marriages. For years, many legal issues remained unresolved regarding the rights of formerly married individuals when they had not formalized their divorce with a court. In a May 2017 decision from the Colorado Court of Appeals, Witt v. Hickenlooper, this ambiguity has been resolved.
Colorado Senate Bill 17-11, formally known as An Act Concerning the Division of Retirement Benefits and Maintenance Payments for Co-owners of Pension Plans, was introduced and passed by the General Assembly in response to this decision. Under this new law, married partners who separate without officially dissolving their marriage and who have benefits due from the state, have an automatic right to receive 50% of the value of the civil service retirement benefits accrued during the time they were in a common law marriage. This new law was in response to the Court of Appeals’ decision that all common law marriage relationships must be treated no differently than formal marriages. Additionally, it also dictates the treatment of 403(b) plans (retirement benefit plans for non-profit organizations). "Mother Slayers," or those who slay another parent of their child and are found liable for child support , can only have that liability satisfied through actual payments of compensation. Practically, this means there is nothing that can be done to offset their unpaid child support liability against an asset subject to attachment pursuant to the Uniform Fraudulent Conveyances Act. Whether a Mother Slayer is married, legally separated, or divorced, the evidence of his or her marriage cannot be used by creditors to satisfy the liability because it cannot be considered income, wages, benefits, or other payment. These slayers continue to avoid sinking their former spouses or partners unless and until they are ordered to assist their children. The current legal status surrounding common law marriages is dictated by Colorado’s Domestic Relations statute. Colorado law treats former common law spouses as both still married, and as legally divorced as of January 1, 2014 – the date the law was made effective. If, prior to January 1, 2014, the former common law marriage was obliterated by the death of one party, the marriage is treated and considered dissolved by death on the date of the death of the party to the marriage who died first, regardless of whether the death occurred prior to the law’s effective date. If there was no death of either party prior to January 1, 2014, the common law marriage is treated and considered as dissolved as of January 1, 2014.