What is a Common Law Marriage in Colorado?

Colorado is one of the few states that recognizes valid common law marriages. For couples who haven’t sought a ceremonial marriage, it is critical to plan ahead by understanding the complexities and implications of a common law marriage—or a lack of the same.

Common Law Marriage & Legal Framework

A common law marriage is an alternative to a ceremonial marriage, which is the more widely known version with a ceremony and license. Legally speaking, there is no difference between the two, and a couple in a common law marriage has the same rights and duties as any other married couple, so it is very important for couples to start by considering whether or not they are in a common law marriage.

Statutory: Pursuant to C.R.S. § 14-2-109.5, a couple may enter into a common law marriage so long as each party is at least 18 years old and the marriage is not prohibited by C.R.S. § 14-2-110 (which prohibits bigamy and incest). That is all the statutory authority provided—whether a valid common law marriage actually exists must be analyzed under the relevant case law.

Factual Analysis: A common misconception is that a common law marriage exists based on the amount of time a couple has lived together. While co-habitation is one factor the court considers when determining whether a common law marriage is valid or not, the actual inquiry is whether there was a mutual agreement between the parties to enter into a marital relationship, followed by a mutual and open assumption of the marital relationship. From a court perspective, intending to enter into a marriage is completely different from a financial, platonic, or even romantic relationship. The person claiming the existence of a common law marriage has to establish it by clear and convincing evidence, and it is a fact-intensive, high legal burden. The most recent leading case on this issue (In re Marriage of Hogsett, 478 P.3d 713 (Colo. 2021)) lays out a non-exhaustive list of factors the court considers:

1. Reputation in the community as spouses

2. Joint tax returns

3. Joint ownership of real estate

4. Joint financial accounts (bank accounts, investment accounts, etc.)

5. Shared financial obligations (mortgages, leases, bills, etc.)

6. Shared surname for children

7. Health insurance

8. Beneficiary designations

9. Mention of other person in estate planning documents (e.g., named as husband, wife, or spouse vs. girlfriend, boyfriend, partner, friend, etc.)

10. What they call each other publicly, in front of family, friends, and peers, on social media, etc.

11. Ceremonies

12. Wedding rings

13. Cohabitation

Official Documents Required: Despite the long, non-exhaustive list of factors the court may consider, it is important to note that courts currently give far more weight to a couple’s official documents than other factors. Such documents include, first and foremost, how the couple files taxes, whether they are listed as spouses for health insurance purposes, and whether/how they list each other in estate planning documents such as wills, trusts, powers of attorney, and the like. Without evidence of these, even if all other factors are in favor of the existence of a common law marriage, the court is highly likely to find there is no marriage.

For same-sex couples, the inquiry may be different depending on the timing of events. Same-sex marriages were prohibited until the United States Supreme Court decision in Obergefell found this ban unconstitutional and allowed same-sex couples to marry in 2015. Because of the ban, same-sex couples could not list each other on official documents prior to that time, but the other factors and conduct prior to 2015 will still be considered when determining whether a common law marriage exists and when the marriage began.

Legal Implications

For couples who either intend or do not intend to be in a common marriage, there are important legal implications to consider ahead of time.

Legal Separations and Divorces: If a couple has entered into a common law marriage and wants to end their relationship, they must go through the formal legal separation or divorce process to equitably divide marital property and determine support obligations, if any. It is easy to imagine why this may lead to contentious litigation. If the court finds there was no marriage, there is no required division of marital property and no maintenance order, which is especially important if the couple decided in the past that one partner would work to earn an income and the other would stay home to maintain the household. Issues also arise when couples dispute the length of the common law marriage, which is relevant for maintenance (alimony) purposes as well as designating property as marital or separate. Importantly, if a couple splits up without getting a divorce and one of them remarries, the second marriage may be found valid/void as bigamy if it can be shown that the first relationship was a common law marriage.

Probate and Estates: If a couple is married and one of them passes away, the other has certain rights with regard to the estate, and this applies to common law spouses the same as other spouses. For example, if a person passes away without a will, the partner may have priority for appointment as personal representative and may have certain rights to the estate as a surviving spouse. If the person who passed did not make it clear whether they intended to enter a marriage and/or whether they intended to leave their all or a portion of their estate to their partner, this can lead to disputes between the surviving partner and other family members during the probate process. It’s very important to create an estate plan with intentions clearly laid out.

Planning Ahead

If you have questions related to common law marriage such as getting divorced, probate rights, estate planning, or whether you’re even in one, it’s highly recommended that you consult with legal counsel. At Gant Law, our attorneys have experience with each of these areas of law. Give us a call or contact us via email to schedule a consultation and we’ll be happy to discuss your particular situation and next steps needed to reach your goals.