In general, a common law marriage is created when a couple are at least 18 years old, the marriage is not legally prohibited, the couple mutually agree they are married, and they present themselves socially and legally as married.1
Proving a Common Law Marriage
Common law marriage in Colorado has often been surrounded by more myth than fact. For example, the myth that if you live together long enough you will become common law married. The truth is that living together does not automatically make you common law married. You still need to meet all the factors stated above.
In addition, the factors must be proven by a preponderance of the evidence that a marriage existed. You “must present more than vague claims unsupported by competent evidence.”2 In addition, the person who claims that there is a common law marriage is the person who must prove it.3
Legally Prohibited Marriage
Legally prohibited marriages are specified under Colorado rule § 14-2-110, C.R.S. They include marrying someone who is already married. If you are in a relationship that is legally prohibited, then you are generally precluded from being common law married. However, this does not mean that you are precluded from determining important matters such as the allocation of parental responsibility. Important determinations as to parental responsibility may be made outside the context of common law marriage.
Mutual Agreement
Mutually agreeing to be married can be more complex and the evidence may overlap with facts that prove social and legal acknowledgement of marriage. It may be as simple as having both stated you agreed to be married as part of your testimony in court or it may also be proven by evidence that you are both holding yourself out as married. For example, stating in public or in front of your family and friends that you are married.
Social and Legal Evidence
The social and legal evidence that you are common law married may be proven by showing a couple acted as husband and wife, for example, sharing joint bank accounts, filing income taxes as married, filing a joint bankruptcy, or placing your names on the title to a home as only a husband and wife can in Colorado (i.e. joint tenants with rights of survivorship).
Your status as common law married may be arguable. Just because you may have shared a bank account or taken other actions jointly, it does not mean you are automatically common law married. There may be facts that are equally or more persuasive showing you are not common law married. For example, you have held yourself out as “boyfriend” and “girlfriend,” as “roommates,” or entered into a relationship based on need and convenience.4
Common Law Marriage and Allocation of Parental Responsibility
If the main concern driving you to consider whether you are common law married is custody and who should have the primary responsibility for your children, then you do not need to prove common law marriage. You may go directly to the court and file an Allocation of Parental Responsibilities Action. This allows you to address issues related to who gets the children, for how long, child support, and other related issues.
Benefits of Common Law Marriage
The main benefit of establishing a common law marriage is the ability to divorce. There are divorce laws that may be advantageous for a spouse or to protect you against claims of fraud and future financial troubles.
For example, if you received a tax refund for filing married that would be above what you would have received filing as a single individual. If you were never married, then you should have never received that tax refund and the IRS could request the money be paid back.
There are also practical issues that may require a divorce. For example, you may have purchased a home solely in your name and the mortgage is solely in your name. At a later point in time you placed your common law spouse on the title. Now you need to sell the home and they refuse to sign the documents. This is an issue that may be resolved in a divorce proceeding.
Are You Common Law Married?
Are you considering filing a divorce or have another reason to determine whether you are common law married? Whether you want to be common law married or defend against the allegation that you are, at Cohen and Cohen, we can help you understand your rights and provide professional representation in your common law case.
Speak to the Common Law Attorneys at Cohen & Cohen to see how our experience representing families in common law situations can help you.
To schedule an initial consultation to review your case with a Colorado Visitation Attorney at our convenient central Denver location call 303-933-4529.
