Are You Common Law Married Under Colorado Law and Do You Need A Divorce?

August 28, 2011

The Denver divorce lawyers at Plog & Stein, P.C. receive multiple calls or inquiries from people related to divorce and custody. One of the fairly common questions people might ask about relates to common law marriage. There are many misconceptions among the general public as to what constitutes a common law marriage and what does not.

Colorado is one of a number of states, which can be counted on two hands, that acknowledges common law marriage. There are certain standards or criteria for determining whether a common law marriage exists. Ultimately, whether a common law marriage exists may be a question of fact to be determined by a Colorado family law judge. For parties to be common law married in Colorado, they must meet the following conditions:

1. Parties must both be over 18 years of age (see C.R.S. 14-2-109.5).
2. The parties must have agreed that they are husband and wife.
3. The parties must co-habitate as husband and wife after agreeing among themselves that they are husband and wife.
4. The parties must hold themselves out to the public at large as husband and wife.

The case most commonly referred to by the Colorado family law community for this standard is People v. Lucero, 747 P.2d 660 (Colo. 1987). Though this case did not relate to a divorce, it set forth the standards most often referred to. When people ask whether they are common law married, they are usually basing their inquiry on other erroneous factors, or one or two of those listed above.

You are not common law married just because you:

1. Live with a person for a certain period of time (people often presume 6 months or more).
2. Have a joint bank account or other joint property together.
3. Live together with the intent of ultimately marrying.
4. File income taxes together.

These factors may all be evidence of a common law marriage, but do not create such. In reality, people may believe they are common law married, but are not. Conversely, people may find themselves to be common law married without even knowing it. These things matter. I see situations in which people have been together for 15 years, bought a house together, had children, one stayed home and raised the children while the other worked and accrued hundreds of thousands of dollars in retirement, yet were never married.

As a Colorado divorce lawyer, I have also seen situations of great concern, in which people have never agreed they are married, never used each other's last names, never told friends and family they are husband and wife, yet have boxed themselves into a legal predicament. Some of the common ways this can happen relate to taxes or health insurance. Co-habitating couples, like anyone else, are looking for ways to cut costs or to maximize finances. As a result, people sometimes file their taxes together as "married filing jointly." Beyond co-habitating, these people may not meet the other criteria set forth to create a common law marriage. Thus, the legal bind begins. In these situations, the parties may be forced to accept a common law marriage even if neither wants it. The problem lies in the fact that by filing taxes together when not common law married, the parties have potentially committed tax fraud. In such a situation, they would be hard pressed in a divorce proceeding to argue they are not common law married. By doing so, particularly "on the record," they are basically admitting the tax fraud. Some judges will even go so far as to be of the belief that they may have a duty to report that tax fraud to proper authorities.

Another common instance in which people may box themselves into a common law marriage relates to health insurance. In this day and age, some insurance companies will allow one person to claim his or her love interest via the signing of an "affidavit of common law marriage." As with the tax return situation, if the people do not truly intend to be married, they might be in a legal pickle, having potentially committed insurance fraud.

If both parties in the tax or insurance situations do not contest the issue of the common law marriage down the road, there may not be a problem. Regardless, why make your future messy? One might also find it problematic to learn years later, down the road and weeks before his or her wedding day, that he or she is actually married. Such a situation might leave you standing at the altar alone.

As a Colorado divorce lawyer, my first step is to always determine whether a common law marriage really exists. We go through the enumerated factors of a common law marriage. We then go through how such is evidenced. This is usually done through the tax returns, the insurance documents, or other documents showing the use of a common, or hyphenated, last name. Often times, friends and family members may also be called in as witnesses to testify regarding the parties' conduct in terms of holding themselves out as husband and wife. What other people presume as to the status of the marriage may matter, though what really matters is the conduct and statements of the potential husband and wife.

Our attorneys also see divorce situations in which the people were common law married for several years, then got a license and went through a ceremony. In such instances, one could argue that the marriage really occurred prior to the ceremony date. Which angle our attorneys argue will depend on which scenario our client benefits from.

When co-habitating, there is a lot to think about related to common law marriage. The man or woman has the power to decide whether he or she is common law married. If proper precautions are taken to avoid the enumerated factors, one can avoid any whiff of a common law marriage. Engaging in one or two may blur the lines to the point that a marriage is determined to exist. Be smart.

Finally, if determined to be common law married, parties can avail themselves of all the legal remedies set forth in the Uniform Dissolution of Marriage Act, C.R.S. 14-10-101 et. Seq. (the divorce statute(s)). People common law married in another state which acknowledges such can also claim common law marriage in a Colorado divorce proceeding. Whether a common law marriage exits can have great effects on someone's property interests, the right to receive alimony, and more. Be smart and know what you are doing when co-habitating or becoming common law married in Colorado. The attorney dealing with your case certainly will know the law and how your facts apply. You should, too. Don't get married by accident.

Towards the completion of this posting, I came across a Colorado legislative publication regarding common law marriage. Though legislatures draft statutes and common law marriage is not set forth in statute, I do find it interesting that the legislature has put forth a publication explaining common law marriage. Maybe this is a first step toward either codifying it or getting rid of it all together?