Colorado Common Law Marriage

What is a Common Law Marriage?

A common law marriage in Colorado is another way of entering into a marriage – an alternative to a ceremonial marriage by which a couple will obtain a marriage license and then go through a ceremony. At the end of the day, a couple in a common law marriage is “just as married” as any other married couple, but may encounter issues actually proving their marriage exists.

You will sometimes hear a person refer to a live-in boyfriend as “my common law husband.” To dispel a myth, simply living together for a period of time (e.g. one year) does not create a common law marriage. While cohabitation is a relevant factor to determine whether there is a common law marriage, it’s not required, and if there is cohabitation, no specific duration is required.

Likewise, cohabitation without the couple actually intending to be married, is not sufficient to create a marriage. A couple which is clearly just dating could live together 20 years or more, and legally just be romantically involved, but unmarried.

Traditional Colorado Requirements for Common Law Marriages

In Lucero, the Colorado Supreme summarized the prior century of common law marriage law in Colorado:

“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.”

And Lucero articulated a 3-part test which must be satisfied in order to have a common law marriage:

• Cohabitation (as spouses)
• Mutual Agreement to be married
• Evidence of Mutual Agreement

Without all three elements being met, there was no marriage.

Traditional Factors For Determining Common Law Marriage

In addition to cohabitation and the couple holding themselves out as married, the Lucero court set out a variety of factors courts should consider when determining whether a common law marriage exists, including:
 

• Joint finances, such as bank accounts & credit cards
• Joint ownership of property
• The woman (and, if applicable, kids) using the man’s surname
• Filing joint tax returns

Colorado’s New Common Law Marriage Framework

The problem is that societal norms have changed significantly in the 34 years since the Lucero decision, so in 2021, the Colorado Supreme Court revisited the traditional requirements, and the factors, and found them wanting. As the Court notes right at the outset of the decision:

“Each of the three cases before us involves a disputed common law marriage claim. Together, they illustrate how much has changed since our decision in Lucero… The gender-differentiated terms and heteronormative assumptions of the Lucero test render it ill-suited for same-sex couples. More broadly, many of the traditional indicia of marriage identified in Lucero are no longer exclusive to marital relationships. At the same time, genuine marital relationships no longer necessarily bear Lucero‘s traditional markers.”

The factors identified in Lucero and subsequent cases interpreting it are still relevant, but not as a litmus test to see if a marriage exists. Rather, courts are to consider those factors as a means of determining whether the conduct of the specific couple at issue shows they intended to enter into marriage. And the Court specifically jettisoned the requirements of cohabitation or the couple publicly holding themselves out as married. While those factors may still be relevant to show the intent of the parties, they are no longer essential requirements of a common law marriage.

“The key question is whether the parties mutually intended to enter a marital relationship-that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation. In assessing whether a common law marriage has been established, courts should give weight to evidence reflecting a couple’s express agreement to marry. In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct. When examining the parties’ conduct, the factors identified in Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form.”

So instead of any particular method of proof, “some objective evidence of the relationship will sufficiently guard against fraudulent assertions of marriage.” ¶ 51. But the refined test is a reflection of our more complicated world: “it is more difficult today to say that a court will know a marriage when it sees one.” ¶ 53.

New Factors to Determine Common Law Marriage

The Court set out a variety of relevant considerations to determine whether a couple intended to enter into marriage, including:

• Cohabitation
• Reputation in community as married
• Joint bank & credit card accounts
• Joint ownership of property
• Joint tax returns
• Using the other spouse’s surname for yourself or your children
• Evidence of shared financial responsibility (lease, joint bills, etc.)
• Joint estate planning (wills, powers of attorney)
• Beneficiary & emergency contact designations
• Symbols of commitment (ceremonies, anniversaries, cards, gifts)
• Couple’s labels for one-another
• Couple’s “beliefs regarding the institution of marriage”
• The couple’s behavior when the relationship ended – a common law marriage claim asserted years later is less credible than one asserted more promptly.

Hogsett. However, it must again be stressed that this list of factors is not a litmus test, but just examples of behavior which may show the intent of a particular couple.

For a complete discussion of the Hogsett case, its reasoning and facts, see our blog post discussing the new common law marriage framework in Colorado. Suffice it to say, as the dissent in that case pointed out, throwing out the traditional requirements will result in common law marriage decisions being made more on a case-by-case basis, instead of by applying objective standards.

As Chief Justice Boatright noted in his concurring opinion, setting forth factors, then saying that they are “not necessarily dispositive proof of a marital relationship… potentially broadens the definition of marriage in a way that will cause additional confusion.” Hogsett.9

Statutory Requirements for a Common Law Marriage

Since a common law marriage was a historic creation of the courts (more specifically, from English courts in our pre-Colonial days), the Colorado Assembly has long left it to the judiciary to define and enforce.

Per C.R.S. 14-2-109.5, the only statutory requirements for a common law marriage, beyond the requirements imposed by the courts, are:

• Each party to the marriage must be eighteen or older &
• The marriage is not prohibited by C.R.S. 14-2-110 (which prescribes bigamy & incest)

How Can I Prove a Common Law Marriage Exists?

First, note from the question that a person claiming the existence of a common law marriage has the burden of proof to show that there is one. Valencia. And whether a valid marriage exists is a “threshold issue” that can be determined by a magistrate early on in the proceeding, without having to wait until the final orders hearing. Phelps.

Since the agreement to be married need not be in writing (and usually isn’t), unless the couple agrees that a marriage exists proving it may be complicated. The court will need to conduct a hearing, at which the trial court will determine the facts based upon the credibility of the evidence. Nugent.

Note that judges scrutinize self-serving common law marriage claims carefully – they require pretty compelling evidence to find that a relationship is actually a common law marriage. In theory, no one should be blindsided to learn he/she is in a common law marriage, because the evidence should be obvious. As a court long ago said, “evidence to establish a common-law marriage should be clear, consistent, and convincing.” Peery.

• The parties lived together for about 5 years.
• The parties shared a joint bank account for shared expenses (but separate accounts for their own incomes).
• They signed a document with the woman’s employer claiming to be married so the man could get a ski pass.
• They signed a statement claiming to have a common law marriage with the man’s employer so the woman could be on his health insurance.

The trial court found no common law marriage, and the Court of Appeals confirmed, citing such factors as:
 

• The woman’s testimony was she never intended to be married.
• The woman never claimed to be married to family or friends, nor to her ex-husband who was still paying her alimony.
• The woman executed a will referring to the man as her “friend”, not “husband”.
• The parties filed individual tax returns.

Kowalski.

Do I Need an Affidavit of Common Law Marriage?

To reduce fraud, some private or educational institutions require proof of the common law marriage, either by showing joint tax returns, or filling out an affidavit swearing that a couple is married. Here is a link to a sample State of Colorado Affidavit of Common Law Marriage. Again, note that the courts have no such requirement.

Not only is an affidavit not required, without more, it’s likely not going to be sufficient to prove a marriage. An affidavit of common law marriage is just another piece of evidence for courts to consider when determining whether a couple is married.

To put it bluntly, a couple may have ulterior motives for signing an affidavit of common law marriage, such as to obtain medical care. And while they may sign an affidavit to defraud an insurer, it takes more than that to prove a marriage exists.

In Whitenhill, a man and a deceased woman had signed an affidavit of common law marriage to facilitate the woman receiving medical care, and after the woman’s death the man relied upon that affidavit to “prove” they were married.

Unfortunately for him, when the court applied the old Lucero standard, it found there was no evidence of cohabitation, the couple had no reputation in the community of being married, and the woman’s own parents were unaware of the alleged marriage. While the trial court found a marriage existed based solely upon the affidavit of common law marriage, the court of appeals found that was insufficient, and reversed, directing the trial court to consider all of the evidence for and against marriage.

Even under Hogsett, while an affidavit would likely be a relevant factor, without more it would probably not result in a common law marriage finding.

Ceremonial Marriage after Common Law Marriage?

Would getting married in a ceremony negate a claim that the parties had a common law marriage prior to that ceremony? Probably not, even though the question obviously arises why they would need to get married again if they were already married.

In a case from the early 19th century, the trial court ignored the evidence of a common law marriage, finding that the parties were not married because the woman had rebuffed the man’s proposals to marry him ceremonially. The Colorado Supreme Court reversed, finding that the parties can have a common law marriage while one of them still seeks a ceremonial marriage: “There are obvious reasons why a marriage ceremony is often desirable, even to those who, in contemplating of law, are already married.” Radovich.

How to Avoid A Common Law Marriage Claim

Use common sense, and don’t commit fraud. As long you never intend to be married, never claim to be married, and you avoid the trappings of marriage, you’ll be fine. It’s okay to live together, but avoid the following:

Evidence of Intent to Marry

Note that if a common law marriage is in dispute, one party’s self-serving testimony that he intended to be married, or that he did not intend to be married, without more, is not likely to be persuasive. Each of the relevant Hogsett factors set forth above will require admissible evidence to prove.

No Common Law Marriage Without Documents

In a 2018 decision, the Colorado Court of Appeals upheld a trial court determination that there was no common law marriage. In Little, the couple (who were previously married then divorced) lived together (in separate bedrooms), ran a business together, and referred to each other as husband and wife to friends and co-workers.

Both parties filed individual tax returns, and claimed to be single for purposes of insurance and Medicaid. These documents trumped the witnesses, and the court found no common law marriage.

This decision echoes earlier decisions suggesting documentary evidence is more compelling than witnesses who contradict the documents. A party who filed individual tax returns and used her maiden name on “all important documents” was found to be unmarried. Wires. Similarly, the court in a bankruptcy case cited the lack of joint tax returns as an indication there was no common law marriage. Frawley.

Note that these pre-Hogsett cases are informative, but not necessarily good legal precedent on common law marriages.

Common Law Marriage Despite Absence of Documents

But before we assume that tax returns are virtually required, consider a 2021 decision where the trial court’s factual findings included many of the factors required (at the time) by Lucero. “Despite the trial judge finding that evidence credible, and that the couple “agreed to and did hold themselves out to be married to the community.” Yudkin.

However, the court then disregarded its own findings and “gave tremendous weight” to the fact that the couple filed separate tax returns every year, using this as a reason to question the credibility of the party claiming a marriage. ¶ 10.

The Court of Appeals overturned that judgment, and in a decision issued the same day as Hogsett, the Court remanded the decision back to the trial court to consider not just tax returns, but the totality of the circumstances, and what those factors meant to that particular couple: “the nuances of individuals relationship or family histories, and their religious or cultural beliefs and practices.” Yudkin.

And in a 2020 case, the Colorado Court of Appeals reversed a trial court which found that no common law marriage existed because virtually all of the documents pointed to no marriage (which the trial judge treated as “objective evidence”), while the family and friends who knew the couple best all believed they were married and testified that the couple held themselves out as married:

“Objective evidence also includes evidence of community members’ observations and understanding of the couple’s relationship… As a result, the district court erred when it discounted as merely subjective evidence the testimony of the couple’s community of friends.”

Yardley

While the deceased man’s family presented some evidence that there was no marriage, the would-be wife presented more evidence pointing towards marriage, including testimony, and some documents. How to reconcile these cases? Tax returns and the like are relevant to determine the intent of the parties, but they are not dispositive.

And that is especially true with same-sex couples, who could not legally file joint tax returns prior to the 2015 legalization of homosexual marriages in Colorado.

Another point is that in the estate cases, only one of the parties to the marriage is testifying, as the other is deceased. With a dissolution case, if the evidence were unambiguous, there would be no hearing to determine whether a common law marriage existed, because the parties would be in agreement.

So at a contested dissolution hearing to determine the existence of the marriage, one of the alleged spouses will be testifying there is no marriage, presumably that party has friends and family who will testify to the same, so the court will necessarily have to scrutinize documents, especially tax returns, to try to assess the credibility of the parties and other witnesses.

Common Law Remarriage

If a couple has already been married and divorced the standard for proving a subsequent common law marriage may be relaxed. Peterson.20

In Peterson, the court asked the following question: “Is the law as exacting and scrupulous respecting the proof necessary to establish a common law remarriage as it is regarding the proof required to make out a case of common law marriage?” The Court answered its own question by quoting favorably from a Pennsylvania case:

“We are, however, not dealing with a first marriage but with a remarriage following divorce after twenty years of wedlock. In such case we think that the law’s role of mere toleration of the common law relationship should be reversed and the status of remarriage favored, even if acquired with common law informality. If the law allows a spouse, in the generous amount of nine reasons, to establish by divorce that the marriage was a mistake, it should be at least equally eager to let both spouses discover that their divorce was also a mistake. We regard it better to encourage remarriage than to leave such parties under judicial edict that they were living sinfully together for ten years.”

Peterson.

And the Court recognized shortly thereafter that Peterson “holds that the evidence in such cases may be less than the positive and convincing proof necessary to establish a common law marriage.” Ward.

Same-Sex Common Law Marriage

Not only does Colorado recognize same-sex common law marriages, but the conduct which results in a finding of a marriage can pre-date Obergefell. What that means is that if an LGBTQ couple intended to enter into a marital relationship prior to 2015, the court will still treat the marriage as being valid, even if it was entered into before 2015, when same-sex marriages were legalized. LaFleur. This might seem incongruous (as the dissent in LaFleur noted, but the alternative would deny the equal protection of marriage to a gay or lesbian couple.

“to enter the legal and social institution of marriage, a couple must mutually agree “to enter a marital relationship-that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. That the marital relationship was not recognized at the time does not change the nature of the relationship itself.”

The Court was dismissive of on party’s contention that he did not anticipate his relationship would actually be a same-sex common law marriage, and therefore carry any legal consequences:

“Many couples may not appreciate or intend the legal consequences of entering into a marital relationship, or anticipate the ways in which those consequences may shift over time as the law evolves. But a couple need not intend the legal consequences of a marital relationship in order to intend to enter into the relationship itself. Instead, the focus is on whether the parties intended to enter into a relationship that is marital in nature. The myriad rights, benefits, and responsibilities bestowed on the marital relationship by the state reflect the government’s and society’s pledge to support and protect the union, but they are incidental to the marital relationship itself. Thus, the fact that a couple did not anticipate or intend the legal consequences of entering a marital relationship does not render their intent to enter into such a relationship legally impossible.”

Moreover, because of the legal and societal challenges same-sex couples have faced, the absence of some factors traditionally considered important, such as joint tax returns, “reveals little, especially given that for the majority of their relationship, this was not a possibility under federal law.” LaFleur.27

In LaFleur the Court stressed the relevance of what the parties did do to show their committed marital relationship, rather than what they did not do, such as cohabitation, providing financial support, and one party listing the other as spouse on several forms over the years.

For a complete discussion of the LaFleur decision, see our blog post Same-Sex Common Law Marriage Before Legalization.

Legal Effect of a Common Law Marriage

Simply put, if you’re married, you’re married, regardless of how the marriage was created. A common law husband is no different than any other spouse. A couple in a common law marriage has all of the same privileges and obligations as any other married couple, and legally there is no difference between a married couple who went through a ceremonial marriage, and one with a common law marriage.

Moreover, it would be a violation of the equal protection clause of the U.S. Constitution to treat married couples differently based upon how their marriage was created. Carter.

Common Law Marriage Stops Prior Alimony Obligation

A common law marriage is just as legally binding as a ceremonial marriage. If one of the common law spouses was receiving maintenance (aka “spousal support” or “alimony”) from a former spouse, upon entering into a common law marriage, that maintenance obligation ends, just as it would upon entering into a ceremonial marriage. Cargill.

Other States Recognize Colorado Common Law Marriages

Is a couple who entered into a common law marriage in Colorado still married if they move to a state without common law marriage? Yes – thanks to the U.S. Constitution requiring states to give “full faith & credit” to other states’ laws, a couple who were common-law married in Colorado are considered married by the federal government, as well as every state, including those which do not themselves authorize common law marriages.

Note that there will be practical problems trying to dissolve a common law marriage in another state – for example, if one party denies there was a marriage, two lawyers who have probably never seen a common law marriage will be litigating the issue in front of a judge, whom has almost certainly also never had a case involving a common law marriage. The court would need to look to Colorado law to determine whether the couple actually entered into a lawful common law marriage, so one way or the other, a Colorado attorney may be involved behind the scenes.

Military Recognition of Common Law Marriages

The military also recognizes common law marriage, as long as it was legal where it was entered into.

“Under laws of certain states, a common-law marriage may be entered into by persons who do not obtain a license to marry or go through certain other formalities. Common-law marriages entered into in those states are considered valid if they are contracted in accordance with state law.”

DOD Financial Management Regulation Regulation, Volume 7A, Section 260403.D.

No Putative Marriage After Failed Common Law Marriage Claim

Colorado recognizes the putative marriage doctrine, under which a “putative spouse” who has entered into a marriage in good faith may be afforded the legal rights of a spouse despite the existence of a legal impediment to the marriage.

However, since a putative marriage claim requires a legal impediment to marriage, it is not a fallback in case a common law marriage claim fails. As the Colorado Court of Appeals held:

“We cannot agree with Ms. Tatarcuk that section 14-2-111 allows a person to attain putative spouse status when she fails to establish the existence of a common law marriage.”

D.P.G.

For a more detailed discussion of the D.P.G. case, see our blog post. And for more information about Colorado’s putative marriage laws, see our Putative Spouse article in this Guide.

Colorado Common Law Divorce

Once a couple has married in Colorado, the only way to dissolve the marriage would be with a formal dissolution of marriage, an annulment, or a legal separation. And though they may enter into marriage without formalities, once married, all marriages are equal. that means that the couple enjoys all of the rights, privileges, and headaches of a formal divorce.

Don’t try to end a common law marriage relationship just by walking away as if you were never married. If you subsequently tried to remarry without formally dissolving the first (common law) marriage, it would be bigamy, and render the second marriage void!

Why does Colorado have Common Law Marriage?

Good question. As the number of states which recognize common law marriages gradually shrinks, there have been only half-hearted attempts to end it in Colorado, none of which have gotten very far.

A hundred-plus years ago, a couple living in the plains or the mountains may rarely see any civil authority, or a judge, to get married, so common law marriage made sense from a logistical perspective. And in the early 20th century, common law marriage may have been a way to legitimize what otherwise could have been a scandalous relationship – particularly if children were involved (“they’re living together – of course they’re married!”)

These days, it’s so easy to get married, and the stigma of being an unmarried couple or unmarried parents, has evaporated. So while the original rationales may no longer apply, the institution of common law marriage survives. But given that you may have trouble proving a marriage existed, a prudent couple would not rely upon being common law married, and instead would just get a license and enter into a ceremonial marriage.

In Hogsett, Justice Hart wrote a concurring opinion saying that common law marriage was outdated and should be abolished:

“I write separately to express my concerns regarding the validity of common law marriage going forward. The historic conditions that once justified the need for the doctrine are no longer present, its application is often unpredictable and inconsistent, and it ties parties and courts up in needlessly costly litigation. It is my view that Colorado should join the overwhelming majority of states and abolish it.”

Hogsett.

Portraying common law marriage as a vestige of America’s outdated colonial, then frontier past, Justice Hart reasoned:

“Today’s world looks very different-socially, legally, and practically-than the world did when common law marriage was a majority rule among the states. The paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders.”

Quoting from the South Carolina Supreme Court decision abolishing common law marriage, he continued: “In prospectively abolishing common law marriage in its state, the South Carolina Supreme Court noted that this confusion has transformed the doctrine into a ‘mechanism which imposes marital bonds upon an ever-growing number of people who do not even understand its triggers.'” ¶ 74. Justice Hart urged the Colorado Assembly to abolish the doctrine of common law marriage.

More Information

Common-law Marriage in the United States article in Wikipedia.