Colorado is one of a few states where a couple can enter into a common law marriage, or a marriage without a license or a formal ceremony. The requirements for a common law marriage are that the couple must: (1) cohabitate, (2) mutually agree to be married, and (3) hold themselves out as married.

What is a Common Law Marriage?

“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.” People v. Lucero, 747 P.2d 660, 663 (Colo. 1987).

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.

Per C.R.S. 14-2-109.5, the only legislative requirements (i.e. requirements imposed by statute, instead of the ones required by courts) for a common law marriage 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)

But that’s not it - Colorado courts have more than a century of precedent setting forth the legal requirements.

Requirements for a Common Law Marriage in Colorado

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 required element of common law marriage, no specific duration is required.

And cohabitation, without more, is not sufficient to create a marriage. A couple which is clearly just dating could live together 20 years or more, and legally remain boyfriend/girlfriend/etc. But if that same couple lived together for just a few months, agreed to be married and held themselves out as married, they would have a common law marriage.

The Colorado Supreme Court analyzed more than 100 years of cases to come up with a list of what is required to prove a common law marriage exists:

Cohabitation (as spouses)

Mutual Agreement to be married

Evidence of Mutual Agreement

People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). Note that in an earlier decision, the Colorado Supreme Court clarified that the cohabitation must be as "as husband and wife" (now, with same-sex marriages, it would be as spouses). In re: Peterson's Estate, 365 P.2d 254 (Colo. 1961). In other words, sharing a home as roommates, but sleeping in separate rooms, would not be cohabitation.

Beyond that, there is no one court case which conclusively sets forth the factors. And because “common law” means it was judicially-created, and not created by statute, the Colorado legislature has provided no meaningful guidance: “Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage.” C.R.S. 14-2-104(3).

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 v. Northland Insurance Co., 514 P.2d 789 (Colo.App. 1973). And whether a valid marriage exists is "threshold issue" that can be determined by a magistrate early on in the proceeding, without having to wait until the final orders hearing. In re: Marriage of Phelps & Robinson, 74 P.3d 506 (Colo. App. 2003).

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 to determine the issue, at which the trial court will determine the facts based upon the credibility of the evidence. In re: Interest of Nugent, 955 P.2d 584 (Colo.App. 1997).

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 surprised to find he/she is in a common law marriage, because the evidence is obvious. As a court long ago said, “evidence to establish a common-law marriage should be clear, consistent, and convincing.” Peery v. Peery, 150 P. 329 (Colo.App. 1915).

A judge once remarked: “marriage is a banquet, not a smorgasbord.” What that means is a person cannot pick and choose to call himself/herself married when it's convenient, and single when it’s not. A party asserting a common law marriage claim likely needs something close to unanimity of evidence, and have not claimed to the contrary, to have a decent chance of success.

In short, a common law marriage is not simply counting pieces of evidence for and against marriage. If there are three pertinent documents, two where a couple claims to be married and one where they claim to be single, there is no assurance a court would find a common law marriage exists.

If you claim to be married, you better have documents and a bunch of friends/family to back up the claim: “mutual public acknowledgment of the marital relationship is not only important evidence of the existence of mutual agreement but is essential to the establishment of a common law marriage. The reason for this requirement is to guard against fraudulent claims of common law marriage.” People v. Lucero, 747 P.2d 660, 663-64 (Colo. 1987).

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

People v. Lucero, 747 P.2d 660, 664 (Colo. 1987).

No one factor is paramount, but typically claiming the other party as a “spouse” simply to gain a private economic advantage (health insurance, joint gym membership, etc), while potentially fraudulent, is not usually sufficient to establish a common law marriage in Colorado.

By way of example, there is an unpublished Court of Appeals decision from 2013, In re: Marriage of Kowalski & Roth (Colo.App. 2003) where the evidence in favor of marriage was:

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.

Absent a couple agreeing that they were married, or having a near-unanimous parade of friends and family testify that they believed the couple was married, filing joint tax returns is widely regarded as the most important of the “objective” factors, since it means the couple is holding themselves out to the government, under penalty of perjury, as being married. But as discussed below, joint taxes are not the only factor, just an important one.

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 v. Kaiser Permanente, 940 P.2d 1129 (Colo.App. 1997), 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, 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.

How to Avoid A Common Law Marriage Claim

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

No joint tax returns!! (This is probably the most important single factor)

Don’t sign an affidavit of common law marriage, e.g. to obtain health insurance

Don’t refer to each other as “husband”, “wife” or “spouse”. Even if you think you’re joking, others may not

Your Facebook status can be single, in a relationship, or “it’s complicated”, but not “married.”

Don’t start using a shared family name

Avoid joint bank accounts to the extent possible

Don’t go through anything that even vaguely resembles a wedding ceremony, even if you think it’s only an expression of love or commitment. That sunrise ceremony at Garden of the Gods may seem harmless, but invite guests, have an officiant and a best man/maid of honor, and it’s looking more like a wedding

No exchange of rings, or wearing a wedding band

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 v. Radovich, 269 P. 22, 23 (Colo. 1928).

Witnesses vs. Documents to Establish Common Law Marriage

Witness say that a couple held themselves out as married, but when filling out official documents, the couple refers to themselves as single. Who wins - friends & family, or tax returns?

Probably the documents. While it may be possible to overcome bad papers with unanimous, compelling witnesses, it’s hard to argue against the very logical point that if the couple did not regard themselves as married for the purpose of dealing with the government, why should a judge treat them as married?

In a 2018 decision, the Colorado Court of Appeals upheld a trial court determination that there was no common law marriage. In re: Estate of Little, 2018 COA 169. 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. In re: Estate of Wires, 765 P.2d 618 (Colo.App. 1988). Similarly, the court in a bankruptcy case cited the lack of joint tax returns as an indication there was no common law marriage. In re: Frawley, 112 B.R. 32 (D.Colo. 1990).

But before we assume that tax returns are controlling, in 2019 the Court of Appeals reminded us they are not. In In re: Estate of Yudkin, 2019 COA 25, the trial court found that the parties met the elements of a common law marriage - they had an agreement to be married, the cohabitated, and they had a reputation in the community for being married. Yet despite meeting all of the elements, the court inexplicably decided that because they did not file joint taxes, there was no marriage.

The Court of Appeals reversed, holding that once findings have been made that the elements of a common law marriage were satisfied, the inquiry ends, and other evidence is irrelevant:

“We understand Lucero to mean that if there is an agreement to be married and the two essential factors — cohabitation and a reputation in the community as husband and wife — are met, the inquiry ends there; a common law marriage has been established. When the two essential factors are not “clearly” established, a court may consider “specific behavior” of the parties, such as the filing of tax returns. But, if the essential factors are met, the inquiry ends.”

Yudkin, at ¶ 11.

How to reconcile these cases? Tax returns and the like are important when deciding whether the elements of a common law marriage exist. But if the court has already found they exist, that's the end of the inquiry, and there's no need to consider tax returns.

Another point is that in the estate cases, only one of the principals involved in the alleged marriage is testifying, and obviously testifying to there being a marriage. 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. In re: Peterson's Estate, 365 P.2d 254 (Colo. 1961).

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 at 256. 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 v. Terriere, 386 P.2d 352, 355 (Colo. 1963).

Same-Sex Common Law Marriage

Prior to the U.S. Supreme Court decision in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), Colorado prohibited same-sex marriages. However, as SCOTUS has found such bans to violate equal protection, same-sex couples may marry the same as heterosexual couples. This applies to both ceremonial marriages, as well as common law marriages.

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 a couple meets the criteria for a common law marriage, the court will treat the marriage as being valid, even if it was entered into before 2015, when same-sex marriages were legalized. In re: Marriage of Hogsett & Neale, 2018 COA 176.

“In states like Colorado that recognize common law marriage, retroactive application of Obergefell means that same-sex couples must be accorded the same right as opposite-sex couples to prove a common law marriage, even when the alleged conduct establishing the marriage pre-dates Obergefell.” Hogsett at ¶ 24.

There will very likely be more challenging proof requirements - since same-sex marriage was not legal prior to Obergefell, the couple would not have joint tax returns before 2015, nor would they likely have an affidavit of common law marriage, or even be on each other’s health insurance.

But there are other factors a court can still consider, and despite no joint taxes, could use to find a common law marriage existed. And, in fact, since those factors were not legally possible for a same-sex couple prior to Obergefell, their absence should be given less weight than their absence would mean for a heterosexual couple.

In Hogsett, the Court happened to find no common law marriage existed based upon the conduct of the couple:

In a relationship for 13 years

Exchanged rings in impromptu ceremony at bar with no family/friends

Did not celebrate anniversary based upon that ceremony

Cohabitated

Referred to each other as “partner”

No sharing of a surname

Joint finances

Built a home together

Both parties acknowledged that the partner opposing the existence of marriage did not believe in marriage

One partner had a credible belief she was married, but the other partner had a credible belief they were not married

But the important legal principle established is that they could have had a common law marriage, as far back as 2001, but their conduct did not satisfy the requirements of a common law marriage. Whether they were same-sex or opposite-sex was immaterial.

Legal Effect of a Common Law Marriage

Simply put, if you’re married, you’re married, regardless of how the marriage was created. 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 v. Fireman's Pension Fund, 634 P.2d 410 (Colo. 1981).

Does a Common Law Marriage Stop a Prior Alimony Obligation?

Yes - a common law marriage is just a 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. In re: Marriage of Cargill and Rollins, 843 P.2d 1335 (Colo. 1993). Note, however, that if you are the former spouse paying maintenance, proving a common law marriage will not necessarily be easy - it's not just cohabitation, but requires looking at tax returns, etc, which the payor often will not have access to.

Colorado Common Law Marriage in Other States

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 in to a lawful common law marriage, so one way or the other, a Colorado attorney may be involved behind the scenes.

Can a couple who live in a different state come to Colorado and get a common law marriage? No. While you can have a "destination" wedding in the Caribbean or in Las Vegas, a common law marriage requires cohabitation in the state where the marriage was formed. And it's hard to argue that a couple visiting Colorado for 1-2 weeks, staying in a hotel or Airbnb, is actually cohabitating. Moreover, from a practical perspective, imagine the chaos if every couple who merely visited Colorado could suddenly be treated as married when they returned home.

Does the military recognize common law marriage? Yes, as long as the marriage was lawful where it was entered into. The Department of Defense has a specific regulation recognizing common law marriages. DOD Financial Management Regulation Regulation, Volume 7A, Section 260403.D.

Colorado Common Law Divorce

Is there such a thing as a common law divorce in Colorado? No. if the couple is legally married by any means, ceremonial or common law, they also enjoy all of the rights, privileges, and headaches of a formal divorce or legal separation. Don’t try to end the 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, if ever, see any civl 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.

One appellate judge, specially concurring in In re: Marriage of Hogsett & Neale, 2018 COA 176, has urged the legislature to abolish common law marriage, stating:

“I write separately to encourage our legislature to abolish common law marriage, in conformity with the majority of jurisdictions. As this case illustrates, common law marriage places a significant and unnecessary burden on the parties and our courts to untangle relationships to determine property (or probate) matters. I believe this is needlessly expensive and unfair to the parties. For all intents and purposes, Hogsett believed she and Neale were married, but Neale believed otherwise. And the two had to endure a lengthy hearing and appeal to determine they were not... Because Colorado’s citizens have physical and legal access to ceremonial marriage, and children born to unmarried parents are afforded the same rights and privileges as those born to married parents, common law marriage is no longer practically or legally necessary." ¶¶ 35-36.

More Information

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

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