Imagine that you have been living together with your girlfriend, boyfriend, or partner for several years when you are served with a complaint for absolute divorce. Can you get divorced if you never had a marriage ceremony? What does it take for living together to turn into Colorado common law marriage?
In this blog post I will discuss Colorado common law marriage and its effect on the modern trend of living together before (or without) getting married. I will discuss whether couples can accidentally get married, and how the law applies to religious weddings performed without a marriage license.
Modern Couples are Skipping the Marriage Ceremony
Cohabitation is on a decades-long rise in Colorado and across the country. According to Census Bureau data, in 2018, 15% of people ages 25 to 34 lived together with their unmarried partners. That’s up from 12% in 2008. Fifty years ago that number was 0.1%.
For these couples, living happily ever after doesn’t need a marriage license or a fancy ceremony. It just means a commitment to support each other and share in the ups and downs of life. But when those relationships fall apart, could they find out they were in a Colorado common law marriage all along?
Colorado Common Law Marriage Depends on Cohabitation, and More
It isn’t easy for Colorado couples to fall into a common law marriage. Unlike some other states, where just living together can create a marriage, here in Colorado, you have to mean it. For a court to decide that a couple is married when they don’t have a marriage license it must find that the couple:
- Agreed to be married
- Lived together
- Mutually assumed the public roles of spouses (i.e. had a reputation of being married in the community)
The courts recognize that in most cases, that agreement to be married doesn’t happen in writing. In People v. Lucero, 747 P.2d 660 (Colo. 1987), the Colorado Supreme Court suggested some factors that a would-be spouse can use to prove that he or she is really a husband or a wife:
- Joint bank accounts
- Joint credit accounts
- Joint ownership of property
- Use of the same last name
- Filing joint tax returns
- Testimony of witnesses that they believed the couple to be married
However, none of these factors is absolute. In a recent decision, In re: Estate of Yudkin, 2019 COA 25, a Colorado Court of Appeals found that even though the parties kept separate financial lives, the testimony of 12 witnesses was enough to demonstrate the marriage existed.
It is worth noting that the same standard applies to same-sex couples, even if their agreement to be married happened before the U.S. Supreme Court made same-sex marriage legal in 2015. In re: Marriage of Hogsett & Neale, 2018 COA 176.
Religious Marriages and Commitment Ceremonies are Proof of Common Law Marriage
Some couples do decide to have a religious marriage or commitment ceremony to publicly demonstrate their agreement to marry. This is especially true for families in religious minorities, or same-sex couples before 2015. Even if the couple never filed a marriage certificate, these ceremonies are proof that the couple did intend to live in common law marriage. Family, friends, and other guests will likely have no way to know you and your spouse didn’t fill out the state paperwork. If you walk down the aisle and say “I do” to a promise to love and support one another, the courts will likely find that you entered into a marriage with all the rights and obligations that go with it.
What Happens When Common Law Couples Get Divorced
In most cases, Colorado common law marriage issues don’t come up until the relationship breaks down. Couples without a marriage license may be asked to sign an affidavit of marriage to claim one another on their insurance, but most of the time, your legal marriage status doesn’t really matter.
However, when a cohabiting couple wants to separate, things can get complicated. Who keeps jointly held property, and how shared accounts are divided can be tough questions that family lawyers and judges are best able to sort out. That’s when a Colorado common law marriage determination can help.
Either spouse can file a Petition for Dissolution of Marriage and ask the court to determine the parties were in a common law marriage. Whoever files the Petition will have the responsibility to present evidence to prove the parties agreed to be married, lived together, and held themselves out as spouses. Once that is done, the family law judge will treat your marriage just the same as any other marriage. That means the judge can order you to attend mediation, and if you cannot resolve your issues, will make decisions for you about dividing parental responsibility, assets, and debts. You can even be awarded spousal maintenance.
Colorado’s common law marriage laws depend more on the couple’s agreement to marry than on the length of the relationship. This means it’s hard to accidentally fall into marriage. But sometimes partners in cohabiting are surprised to find out their boyfriend or girlfriend thought that they were husband and wife. When common law marriage issues arise, you need an experienced divorce attorney to help you prove — or disprove — the marriage agreement and untangle your shared assets so that you can end the relationship and move on with your lives.
At Aviso Law, LLC, our divorce lawyers know the ins and outs of Colorado common law marriage. We will help you figure out if you qualify and make your case to the courts. We will also assist with mediation and negotiations to help you resolve your divorce or dissolve your relationship. Contact us today to schedule a consultation.