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Common Law Marriage: Required Elements and Possible Factors Courts Consider

Dawn Gould

Generally, a common law marriage is established by proving the following elements that are not set out in statutes, but rather court decisions, i.e., common law or case law: 1) cohabitation with your partner for any duration, 2) mutual agreement to be married, and 3) holding yourselves out to be married (evidence of mutual agreement). Even though Colorado recognizes common law marriages (even for same-sex marriages), Colorado does require three additional elements to be proven and these elements are set out in two different statutes, C.R.S. §14-2-109.5 and §14-2-110: 1) each party is 18 years old or older, 2) neither party is married to another person at the time, and 3) neither party is related to each other (half or whole blood) with the exception “as to marriages permitted by the established customs of aboriginal cultures”. If you satisfy all of the elements, then you are married under Colorado law, you can enjoy the benefits of marriage that any other married couple has (health insurance, taxes, etc.), and you can also obtain a divorce in the same way that any other married couple would (equitable division of assets/debts, allocation of parenting time and decision making if you have children, etc.).

WHAT DO EACH OF THE THREE “COMMON LAW” ELEMENTS TRULY MEAN?

Cohabitation with your partner for any duration literally means “any” duration. A clear-cut time frame has not been required by Colorado courts. What is required is that you live together long enough to prove the other two elements and that you live as “spouses”, not as roommates. There have been cases where partners have lived together for years, yet courts have rejected their requests to be considered living as common law married couples because they failed to prove the additional two elements: mutual agreement to be married and holding themselves out to be married.

Mutual agreement to be married means that you both have the intent to be married. The marriage is agreed upon and entered into by both of you. There have been cases where partners have lived together for years, shared bank accounts, signed documents claiming to be married, yet courts have rejected their requests to be considered living as common law married couples because one of the two never intended to be married and only wanted the benefits of a marriage (decrease in health insurance premiums, joint memberships in certain clubs, tax advantages, etc.).

Holding yourselves out to be married (evidence of mutual agreement) means that you claim that you are married all of the time, not just for limited occasions or appearances. Courts have found that a common law marriage requires steadfast, unvarying, and unwavering representation and introduction as husband and wife. Ultimately it means that your family, neighbors, co-workers, children’s teachers, etc. believe that you are married because you consistently claim that you are.

WHAT ARE POSSIBLE FACTORS COURTS CONSIDER WHEN DETERMINING WHETHER A COMMON LAW MARRIAGE EXISTS OR NOT?

Because you are not required to have a civil or religious ceremony, a marriage license, or a marriage certificate to have a common law marriage, it can be complicated to prove that one exists. While there are many factors that a court may consider, there are a few important factors that have been set out in case law that should not be overlooked: having joint bank accounts/credit cards, filing joint tax returns, having joint ownership of property, registering as husband and wife on applications and/or contracts, executing a will referring to your partner as your spouse, exchanging rings/wedding bands, and signing a notarized affidavit called an Affidavit of Common Law Marriage that attests to your marriage (this affidavit can also be filed with the County Clerk and Recorder in the county where you reside).

At The Harris Law Firm we can assist you in proving that there is or is not a common law marriage and we can also assist you with a divorce if needed. Please contact us today at (303) 622-5502 and one of our experienced attorneys will guide you through the legal process and answer any questions that you may have.

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