(And How Not to Find Yourself “Accidenally Married”)
Common law marriage in Colorado is a confusing topic to most because of how many rumors and stories there are about what truly constitutes a common law marriage. For example: “If we live together for two years, we must be common law married…” but living together, alone, is not enough to give rise to a common law marriage. If you think you are in a common law marriage—or might be—you should be sure to know what Colorado courts actually consider to be a common law marriage and how divorce works with these sorts of marriages.
There are two ways in which a marriage can be formed in Colorado. The first is under the statutory requirements of the Uniform Marriage Act under C.R.S. § 14-2-101 through § 14-2-113. This is how the vast majority of marriages are created, through a marriage license and, likely, some formal ceremony. The second way is under the “common law.” Generally, the “common law” is the law that is created solely by court decisions rather than by statute or under Colorado’s constitution.
A “common law marriage” then is a marriage that is recognized by a court as a marriage even though the two potential spouses may not have complied with the requirements of a statutory marriage, such as by obtaining a marriage license. See, e.g., Graham v. Graham, 274 P.2d 605, 606 (1954) (“Common-law marriages are recognized in Colorado.”). Although the requirements for a common law marriage and a statutory marriage are different, the result is the same. A common law marriage is treated by courts in exactly the same fashion as a statutory marriage. That means ending a common law marriage follows the exact same process as any other divorce.
- What is a common law marriage? A “common law” marriage is a marriage that is determined to exist by a court rather than by statute. There are legal requirements for such a marriage to exist.
- Does Colorado recognize common law marriages? Yes. Colorado recognizes common law marriages and has recognized such marriages for many years.
- Does Colorado recognize same-sex common law marriages? Yes. Under state and federal law, same-sex common law marriages are recognized although there are nuanced differences.
- How do you prove a common law marriage in Colorado? The two elements necessary to prove a common law marriage exists are: (1) “mutual consent or agreement of the parties” and (2) “mutual and open assumption of a marital relationship.” You prove these elements by introducing evidence at a hearing such as witness testimony and documents.
- How many years does it take to be common law married? There is no time limit or requirement. A common law marriage could exist after one month and may not exist after thirty years. It is the facts and circumstances that matter—not the amount of time.
- How do you end a common law marriage? With a divorce. A common law marriage is treated in exactly the same fashion as a statutory marriage and the way to end a common law marriage is to file for divorce.
- My ex and I treated each other as if we were married but then our relationship ended, are we common law married? Probably. A common law marriage can begin based on the conduct of the parties but cannot end based on the conduct of the parties. To end a common law marriage, you need to get a legal divorce through a court.
Read on to learn more:
When Do Two People Become “Common Law Married?”
The two major components necessary to establish a common law marriage are the “mutual consent or agreement of the parties” and the “mutual and open assumption of a marital relationship.” See People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). In 2021, the Colorado Supreme Court refined “the test from Lucero and hold that a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.” Hogsett v. Neale, 2021 CO 1, ¶ 3. The Hogsett court further explained that “[t]he core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation.” Id.
The mutual consent and agreement of the parties does not have to be expressly made either orally or in writing. For example, evidence suggesting an agreement can be inferred by “cohabitation and repute,” meaning the conduct of the parties during the marriage. See Smith v. People, 170 P. 959, 960 (1918); see also People v. Perez-Rodriguez, 2017 COA 77, ¶ 14.
The Colorado Supreme Court has specifically stated that there is no single element or formula that results in a common law marriage. For example, the court in People v. Lucero explained that “any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred.” 747 P.2d 660, 665 (Colo. 1987). Because the courts are extremely broad in terms of what can demonstrate a common law marriage, the precise evidence that shows, or does not show, a common law marriage is left to the imagination of the attorneys. However, over time, several things have consistently been shown to be persuasive evidence of a common law marriage.
- Whether the parties lived together (even for a short period of time)
- Whether the parties filed joint tax returns
- Whether the parties have joint bank accounts
- Whether the parties designated one another as beneficiaries under medical, life insurance, or other types of legal documents that are ordinarily used by spouses (without any evidence that this designation was not intended to be evidence of a marriage, such as a civil union affidavit compared to a common law marriage affidavit)
- Whether the parties held themselves out as being married by calling one another their “spouse” or “husband/wife”
- Whether the parties had a marriage ceremony of some kind
- Whether the parties wear engagement or wedding rings
- Under Lucero, anything else that might tend to show the parties openly held themselves out as being married (this can include joint credit cards, joint ownership of real estate, shared club/gym memberships, wedding rings, having children together, and a host of other facts that are consistent with a marital relationship)
While there are many factors that can tend to show a common law marriage, there are some things that can show no common law marriage exists.
- A common law marriage must be shown by evidence indicating a present marriage. A promise to marry in the future is not a common law marriage. See Crandell v. Resley, 804 P.2d 272, 276 (Colo. App. 1990) (“an agreement to marry in the future does not create a common law marriage”). This means that entry into a premarital agreement (“prenup”), a subsequent statutory/ceremonial marriage or evidence of an engagement can demonstrate, under the right circumstances, that there is no common law marriage.
- The parties to a common law marriage must be over the age of eighteen. C.R.S. § 14-2-109.5.
- The marriage cannot be otherwise prohibited under Colorado law. C.R.S. § 14-2-110. (prohibiting marriage of persons who are already married and persons who are related in certain ways).
Colorado courts have also explained that the determination of a common law marriage “turns on issues of fact and credibility” and Colorado district courts must hold a hearing to determine whether a common law marriage does indeed exist. In re Custody of Nugent, 955 P.2d 584, 588 (Colo. App. 1997). What this means for you is that whether you believe there is a common law marriage or not, there is probably going to be a hearing on the matter, and each spouse will likely testify before the court. Stated another way, no matter how much you think a claim for common law marriage is complete nonsense, you are probably still going to have to go to court and testify before a judge regardless.
When Does a Common Law Marriage Matter?
Most of the cases concerning common law marriage relate to three major areas of the law. The first is obviously divorce. To obtain a divorce, the parties need to be presently married. A typical scenario is that one spouse will file for divorce and, at the same time, argue that a common law marriage exists. If no common law marriage exists, no divorce can be granted. In contrast, if a common law marriage exists, the court would then treat the marriage in the same manner as a statutory marriage.
The second way that a common law marriage can come into play is in criminal law. Certain crimes depend on the parties’ marital status. Third, common law marriage can come into play in estate litigation. Spouses have certain rights when their partner passes away and therefore a common law marriage—or lack thereof—might affect a party’s rights during probate and estate battles.
Can You Get Divorce if You are in a Common Law Marriage (A “Common Law Divorce”)?
Absolutely. In fact, you have to get divorced or you face the risk of your common law spouse coming back down the road and asserting claims arising out of the common law marriage, long after you’ve considered the relationship over. In an unusual case, you could even find yourself committing bigamy!
As explained above, a common law marriage is often asserted for the very first time during a divorce proceeding. The party asserting that a common law marriage exists will file for divorce and simultaneously assert that a common law marriage exists and that a divorce is necessary. In these types of cases, the court will first determine whether a common law marriage exists. If a marriage does indeed exist, the court will move on to divorcing the parties. If no marriage exists, then the court will dismiss the case.
If a Court Determines That I am not in a Common Law Marriage, do I Have any Rights?
Possibly. An increasingly important issue in cases involving common law marriages is the litigation strategy involved if the court determines that no common law marriage exists. If there is no common law marriage, the case is not a domestic relations matter, and the parties’ rights can only be enforced in civil courts.
Many people who might be in a common law marriage are also heavily involved with their partner in some way or another. Although the two individuals may not be married, there are often contractual agreements between the parties relating to businesses, finances, houses, and other things. In many cases, the parties jointly own things together such as a business or home. The same people may have children together.
Agreements related to these arrangements and assets can be enforced in the same manner as any other contractual agreement. Moreover, other common law doctrines can be used to enforce a person’s rights such as a claim for “unjust enrichment” or “quantum meruit.” Generally, a claim for unjust enrichment is a claim arguing that the defendant received a benefit at the plaintiff’s expense under circumstances that are unfair. See, e.g., Salzman v. Bachrach, 996 P.2d 1263, 1265 (Colo. 2000). A claim for “quantum meruit” is a similar claim involving a plaintiff that has spent time and energy providing an advantage to a defendant and the defendant has not paid or otherwise compensated the plaintiff for the work. See, e.g., Dudding v. Norton Frickey & Assocs., 11 P.3d 441, 445 (Colo. 2000).
Often, people who are not in common law marriages may have contributed in some way or another to each other’s business or personal ventures. These contributions may be enforceable in civil courts as a matter of contract or what courts call “quasi-contract.” Accordingly, parties that are not in a valid common law marriage may still have legal remedies against one another.
Similarly, parties in an intimate relationship, but not common law married, may jointly own real property (real estate) together. In that case, dividing the real estate may require a civil partition action. If unmarried parties have children together, parenting time, decision making, child support, and other disputes between the parties can be resolved by either an Allocation of Parental Responsibilities action brought under Title 14 of the Colorado Revised Statutes or a Paternity action brought under Title 19 of the Colorado Revised Statutes.
How Can I Learn More?
To learn more about common law marriage, contact the attorneys at Griffiths Law. Because we practice family law as well as civil litigation, we are well-suited to dealing with claims concerning a common law marriage. If a common law marriage exists, we treat the case as a domestic relations matter. However, if no common law marriage exists and there are other viable remedies available such as breach of contract, unjust enrichment, or quantum meruit, our team of civil litigation attorneys can assist you, while our domestic relations attorneys continue to handle any child-related issues, without the need for two separate law firms to represent you.
Christopher Griffiths is a Shareholder and Chief Financial Officer at Griffiths Law—a law firm specializing in family law and civil litigation.