Mitch Tacy Family Law

Common Law Marriage in Colorado- Am I married? 
Common Law Marriage & Divorce
The Legal Consequences of a Colorado Common Law Marriage

Common Law Marriage in Colorado – Am I married?

Common law marriage = Marriage.  Colorado is among a handful of states that recognize common law marriage.  There are a number of misconceptions about what constitutes common law marriage.  The belief that long term co-habitation constitutes common law marriage is one of the biggest misconceptions.  “While it is certainly a factor, let me say, first and foremost, that the mere fact that two people have co-habitated (lived together) for an extended period of time does not make them common law spouses”. Mitch Tacy, Fort Collins Family Law Attorney & Mediator.

There are two essential elements of common law marriage in Colorado:

(1)  A shared belief by the parties that they are husband and wife.

(2)  Mutual and open representation of marriage’s existence.

If both of these elements are present, then a Colorado common law marriage exists.  Here is a more detailed approach, from the wife’s perspective:

(1)  Do you believe that you are (or have been) part of a marriage and that your “partner” is your husband?

(2)  Does your husband believe that he is/was part of a marriage and that you are/were his wife?

(3)  Have you ever represented yourself or held yourself out to others (friends, relatives, or the public) as being married?

(4)  Has your husband ever held you or himself out to others (friends, relatives, or the public) as being married?

If the answers to these questions are yes, then a common law marriage exists.  If the answer to any question is no, then a common law marriage does not exist.

The interesting thing about common law marriage in Colorado is that spouses do not need any type of pre-approval or pre-authorization by a Court to claim or attain common law marriage “status.”  As these elements exist… they can go out to assert “marital” rights (i.e. a right to spousal insurance benefits, right to file taxes as “married,” etc.).  A judicial/legal determination of whether a common law marriage exists is almost always one of hindsight – arising when there is a legal dispute.

Legal disputes involving common law marriage generally arise in two scenarios: (i) a relationship breakup, following which one partner seeks a divorce, or (ii) the death of one partner, following which, one partner seeks spousal rights in an estate administration and distribution.

Colorado Common Law Marriage & Divorce

In a relationship breakup, someone in a common law marriage (or someone who believes that they are in a common law marriage) can file a divorce petition, just as any other married person.  The opposing spouse is then in the position of acknowledging the marriage or denying its existence.  When one spouse denies the existence of the marriage, a hearing will be held.  Each party will have an opportunity to present evidence as to the existence of the common law marriage.  At the hearing, the Judge listens for evidence of the “elements” described above and will assess: (a) the facts presented, and (b) the credibility of witnesses.  The Judge will then decide whether or not a common law marriage exists.

Common Examples of Evidence of a Shared Belief that a Marriage Exists:

  • Co-Habitation
  • Wedding Rings
  • Written and Verbal Expressions Between Parties
  • Commitment Ceremonies
  • Celebration of Wedding Anniversary
  • Conducting Oneself as a Married Person
  • Signing a Marital Agreement

Common Examples of Holding Yourself Out as Being Married:

  • Introducing one’s self or one’s spouse (to others) as being married and/or as husband and wife.
  • Filing joint tax returns, as a married couple.
  • Applying for credit cards, mortgages, etc. as a marriage couple.
  • Applying for health insurance as a married couple.
  • Affirmative acknowledgment of marital status when others inquire as to your marital status or refer to you as being married.

Here are some fact patterns demonstrating how each situation (and the existence of a common law marriage) is fact specific.  The names are used here solely for illustrative purposes, so that I do not have to identify parties by the titles of “alleged husband,” “alleged wife,” or “alleged spouse.”

Couple #1:

Thomas and Martha have been a couple for 15 years.  They never participated in a religious ceremony of marriage, nor did they get a marriage license.  But, nine years ago, Thomas asked Martha to be his wife.  She said yes.  Neither wanted to have a formal ceremony; they agreed that wasn’t necessary. Shortly after, Thomas and Martha bought a house together and moved in. Both are on the title and mortgage.  They share finances – credit cards, savings and checking accounts.  Their cars are jointly titled.  Each year, they celebrate their anniversary.  Thomas has always referred to Martha as his wife; Martha does likewise.  On birthdays, they give each other cards addressed to ‘my wife,’ or ‘my husband,’ respectively.  Martha wears a ring on her left hand, as does Thomas, which they call ‘wedding rings.’  Thomas and Martha file taxes together each year, filing as married.  In public and at social gatherings, Thomas introduces Martha as his wife; Martha does likewise. Recently, they visited an estate planning attorney.  In their wills, each refers to the other as ‘my spouse.’  This relationship has all the elements of a common law marriage.

Couple #2.

Jack and Jill were married in 2000.  In 2004, they got a divorce.  They physically split and separated their assets and finances.  After two years of separation, Jack and Jill started dating.  Their romantic connection was rekindled.  In 2007, Jack moved into Jill’s house.  Jill did not add him to the title, but they shared household expenses.  While they agreed to live together as a couple, they kept separate banks accounts and separate finances.  While they were happy, neither Jill or Jack asked the other about getting remarried; neither wore a wedding rings.  At social gatherings, most of their friends knew that they had not remarried.  When the issue came up, i.e. someone asked if they were married, Jack and Jill said no.  Occasionally, someone would assume that they were married and introduce them as husband and wife.  This situation always was embarrassing, and Jack and Jill usually remained silent.  Although Jack and Jill co-habitate (live together) and some may assume that they are married (a fact that they do not always deny), Jack and Jill do not have a common law marriage.  The key facts being that: Jack does not think of Jill as his wife; Jill does not believe that Jack is her husband; and they do not hold themselves out as a husband and wife.

In 2010, Jack lost his job and his health insurance.  In 2011, he started having some serious health issues.  He asked Jill if she would add him to her health plan, as she was eligible for spousal coverage at a cost significantly less than what Jack could find on his own with his preexisting condition.  Jill was concerned that Jack’s health problems could bankrupt him without health insurance.  She contacted her employer and asked that they add Jack to her plan as her spouse.  That was done, and Jack utilized the coverage.  In 2012, Jack and Jill’s relationship soured, and Jill asked Jack to move out.  Jack filed for divorce and asserted common law marriage.  Jack is going to have a very difficult time asserting that a common law marriage existed (or exists).  Although Jill did represent to her employer that Jack was her spouse, this was a one time representation that was false.  Jill only made the representation because she felt sorry for Jack… Jill never thought of Jack as her husband.  Jack was happy to get the health insurance, but he did not believe that Jill’s actions of adding him to the policy, meant that she embraced him as her husband. Being added onto the insurance policy as a spouse did not change the true/fundamental nature of their relationship.  Their actions may get them in significant trouble with Jill’s employer and insurance carrier, but it does not make them “legally married” – despite the fact that they lived together and made the representation to the insurance company that they were married.

It is important to realize that each case of a Colorado common law marriage is fact specific.  If you believe that you are or were common law married, you should contact Mitch Tacy Family Law Attorney & Mediator for a consultation at (970) 214-8840.

Legal Consequences of a Colorado Common Law Marriage

The existence of a common law marriage has important legal consequences:

  • Divorce.  The proper legal process for ending any marriage is a divorce process that results in a formal Decree of Dissolution from a Colorado Court.  Once the existence of a common law marriage has been established (either by admission of the parties or by Order of the Court after a trial), a Colorado common law marriage is treated no differently than a marriage that started with a formal ceremony and/or the issuance of a marriage license.
  • Estate Planning.  Spouses to a common law marriage are entitled make spousal claims upon the estate of his/her spouse.
  • Right to Re-marry.  You can not legally marry more than one person.  If you are in a common law marriage, and you fail to get a Decree of Dissolution, you can not legally re-marry until you get divorced.

In a divorce dispute, common law marriages are subject to the same issues and challenges that every other marriage faces… maintenance, property division, debt allocation, etc.  Therefore, these consequences become very important for:

  • individuals with significant home equity, business interests, investments, retirement savings, etc.;
  • someone whose “partner” is accumulating significant debts or is developing a case of  “financial dependence.”

Mitch Tacy Family Law Attorney & Mediator
155 E. Boardwalk Drive, Suite 464, Fort Collins, CO  80525
1635 Foxtrail Drive, Suite 356, Loveland, CO  80538



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