What Constitutes a Common Law Marriage?
What is Common Law Marriage?
In the past, common law marriage was a concept that was widely debated on the national level, primarily because identifying common law marriages was nearly impossible due to the inconsistent manner in which the states treated them. In Pennsylvania, for example, common law marriages were valid until January 1, 2005. In contrast, New Jersey and Delaware have never recognized common law marriages. Moreover, even when two people meet the necessary requirements to be considered common law married, it is not necessarily black and white—there has to be proof that the parties intended to be considered married.
Common law marriage exists when two people live together and hold themselves out publicly as married , for the requisite amount of time. The majority of states do not recognize common law marriage, however Colorado does. Therefore, if you think you may be in a common law marriage with your partner because you are aware that you lived as a married couple, for at least a year, pay joint bills, file joint taxes and wear wedding rings, then you need to be aware of the legal ramifications of these factors. In addition, if you are in the process of divorcing someone whom you believe to be a spouse, or if your ex-spouse is claiming that you never entered into a marriage because they claim that you were not married as a matter of law, then you must also be prepared to prove that you were indeed in a common law marriage.
Common Law Marriage is Legally Recognized
Common law marriage is valid in Colorado. There are, however, a number of caveats which I will discuss in this section.
From our recent discussions here, we know that there is no legal definition of common law marriage here in Colorado, we can be guided by the definition of common law marriage provided by the IRS. Nevertheless, Colorado law is also quite clear as to what factors need to be present for a court to find that a couple is in a valid common law marriage.
According to our courts, in order for a common law marriage to be created, three things must be present. There must be an exchange of words evidencing intent to be married and there must be cohabitation. There is no specific length of time required for these two things to occur. There has to be an agreement, we think, to hold yourself out as being married.
There are two statutes which govern the recognition of common law marriage. These are combined at C.R.S. 14-2-109 and 110. These statutes set forth that common law marriages are recognized as valid by our courts. In fact, the Second Court of Appeals has found that common law marriages are now mandated for all jurisdictions in Colorado.
The case of In Re Marriage of McGlarn, certainly applies to Colorado couples who question the validity of their common law marriages when it comes to the division of marital property. This case clearly illustrates the legal recognition of common law marriage in Colorado.
Common Law Marriage Requirements in Colorado
For a common law marriage to be validly recognized in Colorado, there must be evidence that the couple cohabitated and each intended to be in a marital relationship with the other. In other words, both parties must have a shared intent or interest to be married. If a couple is legally married in either their home state or the state of Colorado, they do not need to meet the criteria above in order to be legally married in Colorado. In addition to mutual intent, the significant elements for a common law marriage to exist are that:
Once these criteria are shown, a common law marriage will be presumed to exist unless and until either party can show otherwise. While a party generally has the burden of showing the absence of a common law marriage, it is not uncommon for a court to require proof of the existence of such a relationship. Factors considered in determining the existence of a common law marriage include joint bank statements, sharing of resources, when the couple moved in together, etc. The ultimate question in this determination is whether a reasonable person would conclude that a marital relationship existed.
Common Law Marriage Implications and Benefits
The following is a brief overview of the benefits and legal implications of a common law marriage in Colorado. When a couple chooses to enter into a common law marriage, they are accepting that all of the rights and obligation of their relationship will be similar and equal to traditional marriage. For Colorado residents who legally end their common law marriage, they are eligible for all rights, benefits and obligations as a formal marriage. Similarly, Colorado law provides for the legal dissolution of the marriage. In the event the couple legally separates, a couple can ask for the apportionment (division) of assets and debts as well as decisions made regarding child custody, support, visitation and child care. While a court generally can not grant a divorce without proof that a valid marriage existed, a marriage that started out to be valid may turn out to be invalid especially when either party was relying on common law marriage. At that point, the couple can legally dissolve their domestic relationship and terminate the economic union. A Family Law attorney can help determine if a valid common law marriage has existed or not.
Common Law Marriage and Dissolution
Dissolution of common law marriage in Colorado is very similar to the dissolution of a ceremonial marriage in Colorado, as common law marriage in Colorado is validly entered into and existing upon the substantive requirements set forth above. There is no special legal separation from a common law marriage in Colorado. However, pursuant to current Colorado law, common law spouses may obtain dissolution of their common law marriage (separate or joint) either by filing a petition for legal separation or divorce with the District Court, or by commencing an action for dissolution of marriage.
In Colorado, a decree of legal separation does not terminate the marriage. Rather, a decree of legal separation provides for all of the substantive legal provisions as those found in a decree of dissolution of marriage, including the division of property and debt as well as determining parental responsibilities with respect to minor children . Common law marriage in Colorado is terminated at the time that the court enters the decree. Although Colorado law does not specifically provide for annulment of common law marriage, a court lacks the power to change the law and commonly recognizes the concept of annulment.
The requirements for ending a common law marriage are exactly the same as those for obtaining a dissolution of a ceremonial marriage in Colorado. The factors for determining whether a marriage has ended include whether the Respondent has presented any evidence showing a triable issue about whether no irregularity or defect occurred in the common law marriage or whether the parties intended to end their marriage. In order to terminate a common law marriage in Colorado, a party must wait a minimum of 91 days after the filing of the petition for dissolution of marriage or legal separation before they can enter into a final decree of dissolution of marriage.
Common Law Marriage Myths
While the concept of common law marriage has sometimes been treated in popular culture humorously, there are serious legal implications for those who are considered to be married under Colorado common law or otherwise. While there are many misconceptions surrounding the notion of common law marriage in general, I believe that some are specifically relevant to Colorado and the fact that it is a common law marriage state. Some of the common misconceptions are as follows:
Myth: In order to even be considered common law married, you have to live together for at least two years.
Truth: No, there are no time-based requirements for common law marriages in Colorado, or any other state for that matter.
Myth: You can’t be married if you’re in a domestic partnership.
Truth: Not in Colorado. We do not have domestic partnership agreements in Colorado that are apart and distinct from marriage.
Myth: You can’t be married unless you have a marriage certificate.
Truth: Marriage certificates are issued after common law marriages, just depending on when the marriage was determined to exist.
Myth: You need a common law marriage certificate to be common law married.
Truth: No, you do not. We do not have a common law marriage certificate.
Myth: If you haven’t been common law married yet, there’s nothing to divide in the event of a divorce.
Truth: Everything owned jointly will be divided equitably.
Myth: Common law marriages are just antiquated and no longer recognized in states that allow them.
Truth: At least two states recognize common law marriages that have been entered into as recently as 2010.
Myth: It doesn’t matter what your intent is – if you have lived together for a sufficient length of time, you are common law married.
Truth: Intent is one of the most important factors in common law marriage.
Impacts of Common Law Marriage on Estate and Inheritance
In Colorado, common law marriage can significantly affect a person’s estate plan, as well as influencing a partner’s ability to inherit based on intestacy laws. In Colorado, a person’s spouse has a right to inherit property even if the decedent did not include that spouse in a will. Colorado Revised Statutes 15-11-102 explains that an individual’s spouse is included as an heir and entitled to inherit from an estate unless the decedent’s will specifically disinheriting the spouse, or there is a settlement agreement stating otherwise.
Regarding a common law marriage , Colorado Revised Statutes 15-11-114 further states that if a person with a common law spouse who qualifies as provided above dies "intestate, the common-law spouse shall take from the intestate’s estate in the same share as a surviving spouse would if there had been a ceremonial marriage." If a person with a common law spouse dies intestate without a surviving will, the common law spouse will likely inherit the same percentage of the estate as a spouse would have inherited if they were ceremonially married.