What is Common Law Marriage?
In the realm of romantic relationships, common law marriages have been a common topic of conversation. The idea of legally recognizing a marriage without a formal ceremony, a wedding dress, cake or parties, along with the fact that there are only a handful of states (and Puerto Rico) where this is permitted made for several articles on the subject as well as facebook discussions.
The definition of common law marriage is that even if you and your significant other didn’t stand in front of the Justice of the Peace or in front of a Religious Official to say, "I Do" you can still have a legally recognized marriage just by living together and having a mutual agreement to be married.
According to The Legal Information Institute, "common law marriages are generally contractual in nature and do not have to be officiated by a church or civil official. A common law marriage is an agreement between both parties that the relationship is intended to be permanent and that the parties ‘present’ themselves as married in their community."
Now that we have a definition let’s explore what distinguishes a common law marriage from a traditional marriage.
The New Jersey State Bar Association explains that the difference between the two types of marriages is:
"…if the couple has lived together for years but have not obtained a marriage license or exchanged vows, they may be in a ‘common law’ marriage if they were cohabiting in a state that recognizes the common law marriage or are in a long-term relationship in a state with a general policy of recognizing common-law relationships (commonly referred to as ‘doctrine of implied marriage’)."
Let’s remember that States have far reaching jurisdiction in regards to the laws governing property, marital rights, divorce, child support, custody and alimony. While the federal government has jurisdiction in matters regarding immigration, taxation, some gun control and bankruptcies.
The common law marriage is one of those issues that are governed by the specific State(s).
One possible reason for the doctrine of implied marriage in New Jersey , according to the NJPA, could stem from the Civil War when couples would get married and the husband would go off to war. When the husband was killed then the wife would have to go back to divorce court in order to file for divorce and her share of the property that she was entitled to as his spouse.
That was a long and tedious process for all involved. Therefore, the law was created that anyone who thought they were married were legally recognized as so. And therefore there was no need for divorce court.
However, the individual states created their own policies on the subject.
In Colorado, the Colorado Bar Association defines common law marriage:
"…as a legal form of marriage created by the actions of two parties rather than a formal ceremony or marriage license. Common law marriages must meet certain criteria: The two parties knowingly entered into the marriage, intended for the relationship to be permanent and live in a manner consistent with a marriage. In Colorado, the parties must live together for a period of time, but the law does not specify the length of the relationship."
So what determines whether you are or are not common law married? In Colorado the Department of Human Services established 6 identifiable points that can be used to identify a common law marriage.
According to the department, The facts below will help in making a determination of whether a common law marriage exists:
- Did the parties mutually and openly agree that they were married?
- Has the parties’ behavior demonstrated to the general public that a marriage exists?
- Did the parties do things that married couples do, like file a joint tax return?
- Did the parties separate and acquire property or debt that clearly stated who was responsible for what?
- Did the parties introduce each other as spouse?
- Did the parties ever refer to each other as spouse?
While Common Law Marriage is a unique option for marriage, if you are living in a state where this is not an acceptable option you will not be legally considered married even if you meet all the required ingredients to be classified as common law married.
Is Common Law Marriage a Reality in Colorado?
A common misconception is that Colorado recognizes common law husband-wife relationships. Nevertheless, this is not true. The courts in Colorado (as well as the legislature) recognize common law marriage, however, it is a very limited reality with tight restrictions on its applicability. For example – whereas many states will recognize a common law husband-wife relationship after 3 or 5 years of living together as husband-and-wife and/or having children, Colorado does not. Unlike most states, Colorado has no statutory time restrictions for the creation of a common law marriage.
Here is the legal way that a common law marriage is created in Colorado: An express or implied agreement between two individuals to marry and cohabitation is all that is necessary to create a common law marriage in Colorado. The burden of proof to establish these requirements is on the party seeking the benefit of the marriage relationship, and the proof must be shown by clear and convincing evidence (meaning that the evidence is highly and substantially more probable to be true than not true). Therefore, the Judge must be reasonably satisfied with the proof that the parties were husband and wife. Colorado does not have a statutory minimum time requirement, although most successful common law marriage cases were in existence for more than six months. The analysis always comes down to the facts and circumstances in each individual case.
An important factor to note is that the Colorado Supreme Court has upheld the validity of common law marriages entered into in Colorado, even after one of the partners left the State and subsequently passed away. Because there are no residency requirements to the formation of a valid common law marriage, the marriage continues to exist until the death of one of the parties or until it is dissolved by a Court. A common law marriage may be dissolved by the Court in Colorado the same way as a ceremonial marriage is dissolved.
The following is a list of criteria that will be considered in determining whether a Colorado common law relationship was created:
Common Law Marriage Requirements in Colorado
To be considered in a common law marriage in Colorado, the parties need to meet the following criteria:
Intent
There is no specific form or process for establishing a common law marriage. However, both parties must intend to marry. In other words, the parties must have a mutual agreement of their present intent to create a marriage. This is often proven by evidence demonstrating that the parties understood they were in a marriage-like relationship.
Cohabitation
The parties must live together. While the cohabitation requirement is fairly straightforward, it has been the subject of some litigation. For example, an argument could be made that "second homes" would violate the cohabitation requirement if they are substantially separated from the primary residence. A few Colorado cases determined that property used by one party as a second home, but also used as a place to entertain each other and friends, might not qualify as a second home. However, if the parties use such property as a second home for other purposes and are able to provide direct evidence of its use as such, there is a stronger argument that it qualifies as a second home used for a purpose separate from the primary residence.
Public Representation of Marital Relationship
The parties must hold themselves out as a married couple. This is often demonstrated by having a joint bank account, joint credit cards, filing a joint tax return or a change in name. There is no requirement that a new surname be adopted in a common law marriage; rather, the parties must merely hold themselves out to others as a married couple. Even if the parties live together but do not represent themselves as married and do not intend to be married, they do not qualify as a common law marriage in Colorado.
Common Law Marriage Rights and Obligations
When it comes to legal rights, a common law marriage in Colorado is treated the same way as any other formal marriage. A common law spouse has the legal right to property obtained during the marriage, the same as a spouse married through a formal ceremony. This includes inheritance—unless you specify otherwise in a will.
In general, Colorado law defines a spouse as any entry in the state’s registry of marriages. Even without a formal marriage certificate, the couple is entitled to their fair share of marital property after legal separation or divorce.
In the event of a death, Common Law spouses can inherit the property and other assets, along with social security benefits. If the deceased spouse has a will, the spouse must abide by that and cannot lay claim to property bequeathed to anyone else. If a common law spouse is unhappy with their inheritance, he or she can challenge the will through court. A spouse must act within a set time period (generally within a year after the death of the spouse) or risk losing out on the inheritance entirely.
Some believe that living together for a certain number of years without a formal marriage gives them rights to their partner’s earnings. This is not true. In other states, it may be possible for unmarried couples to file a joint claim with the labor department to obtain workers compensation. In Colorado, only spouses, children, parents, or dependents can pursue a workers’ compensation claim under the law.
Proving a Common Law Marriage
When it comes to proving a common law marriage in Colorado, the process can often be more complex than individuals anticipate. In Colorado, there are no ‘common law marriage licenses’ or ‘common law certificates.’ Instead, a common law marriage in Colorado is established when two people agree to enter into a marital relationship and hold themselves out to the public as a married couple. As with most other types of marriages in Colorado and elsewhere, you must be at least 18 years of age to enter into a common law marriage. When it comes to a common law marriage, however, there are no county clerks offices or registries of vital statistics to provide records. As such, proving the existence of a common law marriage in cases of divorce or legal separation can be tricky . There are no hard and fast rules for what types of evidence are required to establish a common law marriage, but rather it is up to the family law courts to evaluate the evidence considering the totality of the circumstances. Each case is different and varies from judge to judge. As part of this analysis, the Colorado Supreme Court has identified the following types of evidence that may be relevant in determining whether a common law marriage exists: When trying to prove a common law marriage, individuals should not expect the court to be able to make a determination based solely on insufficient evidence or unsupported speculation. While there is no certain way to prove the existence of a common law marriage, parties should employ the above-mentioned types of evidence in their analysis and evidence. Working with a knowledgeable Colorado divorce attorney can help ensure that you have the evidence you need to show the existence of a common law marriage in a contested divorce matter.
Ending a Common Law Marriage
In order to terminate a common law marriage, or in other words, get a divorce, the parties must initiate a formal divorce proceeding. While the requirements for a divorce are essentially the same as any traditional marriage, it is often more cost and time effective to go through the divorce process as common law marriages are so rare. In addition, a court will never recognize an "annulment" of a common law marriage.
Common Myths
In addition to the law itself, there are a wide variety of myths and misconceptions about common law marriage in Colorado. Some of these are fairly harmless, while others are destructive for those who believe them.
One of the most common misconceptions is that you must live together for a set period of time in order to be considered common law married in Colorado. This is false. You may have lived together for five years, ten years, or even two decades before a court would decree a common law marriage based on your cohabitation. Conversely, you may have lived together for only a matter of days or weeks before the court finds that you were common law married. Duration is not in and of itself a proven fact to establish a common law marriage.
Another misunderstanding is that once you have held yourself out as a married couple and declared your intent to be married, you are automatically considered married, no matter the circumstances. This is simply not true. Holding out and declaring your intent is certainly one of the conditions for creating a common law marriage in Colorado, but they are not by themselves determinative of the question of whether a common law marriage exists.
Generally, though, both the holding out as married and the declaration of intent to be married should be shown for the court to find that the parties at issue were in fact married under common law in Colorado.
Practical Issues
Couples considering common law marriage in Colorado should understand that the potential practical consequences of this legal status. Even doubtfully adjacent couples should think long and hard about whether to expose themselves to the potential complications of being a common law spouse, especially without the advice of an attorney.
First, in Colorado most married spouses have joint interests in each other’s debts. Since common law spouses are recognized as married by the state, they may be responsible in some circumstances for the debts of their spouse. An aggrieved creditor does not care if your spouse burned a bunch of barns to the ground and may very well simply come after you if your spouse cannot pay.
Second, common law spouses can be restricted in their rights to property in a divorce. Judges have broad discretion in what they can award a divorcing spouse, and depending on the facts of the case, the judge could effectively award very little or even none of the property to a common law spouse . This is especially likely in cases where the parties cannot prove what either spouse owned at the time of marriage and its approximate value.
Third, customers and workers do interact with companies and individuals differently based on marital status. For example, some benefits may not apply to domestic partners as if they were married. Similarly, some services or products could be restricted to spouses rather than all partners.
Finally, after a couple dissolves in a common law marriage, the more trouble the parties had delineating assets, debts, income levels, who owned what when, and related subjects, the more complicated the divorce process will be. A practical way to establish rights during marriage is to keep separate records for income and bills, keep separate property separate, and keep all assets and debts apportioned clearly.