Suppose you’re looking to end your marriage with your partner. If you do some research, you might see terms such as “divorce,” “legal separation,” “common law marriage,” and “annulment” floating around the internet and have no idea where to start or what the differences are between the various types. What type of filing is right for you and your situation depends on a few factors, including:
- Were you formally married (usually through a ceremony or marriage license)?
- If not, did you act like a married couple/believe you were married?
- What are your long-term goals in ending your marriage?
Keep reading to understand the main differences between these different types of “divorce,” and what the processes, requirements, and long-term outcomes are for each.
Read on to learn more about how each option works and its unique benefits—as well as its drawbacks.
Can I still file for divorce if I’m in a common-law marriage?
The short answer is YES.
If you want to separate from your partner but never entered a “formal” marriage, you are not necessarily out of luck. In Colorado, there are two ways that you can be married in the eyes of the Court, either (1) by meeting the statutory requirements under the Uniform Dissolution of Marriage Act (likely through a marriage license or formal ceremony), or (2) by being “common law” married. Common law marriages are not defined by statute in Colorado, but instead have been created by the courts over time.
Contrary to popular opinion, living together for a certain amount of time (such as 7 years) does not in and of itself create a common-law marriage in Colorado. To be in a common law marriage, you must meet two elements described in the People v. Lucero Colorado Supreme Court decision. First, you must show a “mutual consent or agreement of the parties,” and a “mutual and open assumption of a marital relationship.” 747 P.2d 660, 663 (Colo. 1987). The Court further clarified that a common law marriage may be created 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. That conduct can be shown by the parties’ intent to “share a life together as spouses in a committed, intimate relationship of mutual support and obligation.” Id. If you believe you are in a common law marriage, and your partner disputes it, you will need to prove these elements to the Court, usually at a hearing with testimony and other forms of evidence such as documents.
Determining whether you are common law married in the eyes of Colorado Courts can sometimes be difficult. If you believe you might be common law married, we highly recommend reading “The Truth About Common Law Marriage in Colorado.”
If you believe you are common law married, you can file for a divorce or legal separation in Colorado. If the Court determines a common law marriage exists and that you are presently married, you will proceed down the same formal process and be divorced just as a couple who obtained a formal marriage license.
I’m ready to file – should I file for divorce or legal separation?
If you are looking to formally end your marriage, you should first decide whether you want to file for a legal separation or dissolution of marriage (commonly known as a divorce). While both legal separations and dissolutions of marriage will end your marriage, there can be different long-term outcomes based on which type you file.
With that said, there is very little difference between the filing or court process for a separation and a dissolution, and the legal process is the same including exchanging financial disclosures, entering into a formal agreement dividing property, and entering into a parenting agreement for the allocation of parental responsibilities (custody) for any children you have. The only difference in the court process is that at the end of your case you will be granted a “Decree of Legal Separation” rather than a “Decree of Dissolution of Marriage.”
You might be asking yourself, “if the process is the same, why do people file for a legal separation instead?” Most people look to legally separate for religious reasons when they do not want to be formally divorced, since a legal separation can help you get the same general result without going against your religion’s views. Others prefer to legally separate for certain financial advantages, such as for tax reasons, or in some cases, being allowed to remain on your ex’s health insurance after your marriage is ended.
One key difference between a legal separation and a dissolution is that after a decree of legal separation is entered, you are still legally married and can’t marry another person without requesting to convert the legal separation into a divorce. In Colorado, this conversion can happen at any time after 6 months have passed since the decree was entered, by any party, and for any reason. This conversion to a “divorce” can happen even without the other party’s consent – so long as the 6-month waiting period has passed.
Most parties file for a dissolution of marriage, but a legal separation may be right for you in your circumstances. If you are file a petition for legal separation and later change your mind, you can always file a request with the Court to convert it to a dissolution of marriage so long as the decree has not entered yet. Of note, the Court will only grant a legal separation if both parties agree to legally separate instead of divorce. If your spouse wants a divorce, the Court will grant a dissolution instead of a separation. See C.R.S. § 14-10-106.
Should I file an annulment instead?
In Colorado, a request to “annul” your marriage is achieved by requesting a Declaration of Invalidity of Marriage be entered in your case. See C.R.S. § 14-10-111. Declarations of Invalidity are rare, as there is a very limited of circumstances that allow for an annulment rather than divorce.
C.R.S. § 14-10-111 lists the specific circumstances you might be eligible to annul your marriage, including:
- A party lacks the mental capacity to consent to be married.
- A party cannot consummate the marriage (and the other party was unaware of this inability).
- At least one party is under the legal age to be married.
- The marriage was entered into by fraud or misrepresentation by the other party, which led to the “essence” of the marriage.
- You got married under duress.
- You got married as a joke or dare.
- The marriage itself is prohibited by law – such as if your spouse is already married to someone else.
If you believe your situation applies to any of these factors, a declaration of invalidity of marriage may be the right option for you. After filing a request for declaration of invalidity, your partner can contest your request and argue that a valid marriage does exist. You will then need to provide proof of the circumstances leading to the invalidity of marriage including presenting evidence through testimony and documents to a judge. If the Judge agrees that you cannot be legally married, a declaration of invalidity is entered in your case, and your marriage is considered “void ab initio,” meaning invalid from the start. Payne v. Payne, 214 P.2d 495, 498 (Colo. 1950).
If your marriage is declared invalid, there are still legal remedies you can seek to resolve other issues, including allocation of parental responsibilities (custody) and civil remedies related to property. These are most often filed with the Court either after the declaration is granted, or concurrently with the request for declaration of invalidity.
Choosing the best option for you
Filing for divorce or separation from your partner cannot only be emotionally taxing, but confusing and complicated. Meeting with an attorney to discuss the various types of separation, and whether you are married or not, can help get the critical answers you need to decide how to proceed. Every situation is different, and an attorney can help you decide what solution is best for you and your relationship.
Kellian Coggswell is an Associate Attorney at Griffiths Law. Her practice is focused exclusively on family law related matters, including divorce, common law marriage, allocation of parental rights, post-decree disputes, and child support.