You might have heard the phrase “common law marriage” and not quite understood what it meant. How does common law marriage differ from a traditional marriage? And are you considered to have a common law marriage just by living with a romantic partner?

In Colorado, a common law marriage is largely defined by a couple’s intent to be married. Even if a couple does not have a formal civil or religious ceremony, they can be deemed to be married if they engage in behavior that shows that they intend to be married. Because common law marriages are treated exactly like ceremonial marriages for legal purposes, you should be aware of how a common law marriage is formed and how it will affect your legal rights.

At Ascent Legal Group, we are dedicated to helping individuals and families navigate complex family law matters in Colorado. If you have a common law marriage, we can help you with the legal issues related to it, including divorce and legal separation. Reach out to our law offices today to schedule a free consultation with a Colorado Springs family law attorney.

What Is a Common Law Marriage?

Colorado is one of just 8 states that recognize common law marriage. At its core, a common law marriage is just a different way of becoming married. With common law marriage, you can take advantage of the legal benefits of being married without getting a marriage license and being officially married by an officiant in a civil or religious ceremony.

Common law marriage made a lot of sense from a historical perspective. This is particularly true in a state like Colorado, where a couple might live in a remote area, and when it was far more difficult to travel to get to an officiant. Today, common law marriage might not be as necessary – but it is still an option in Colorado.

When a couple has a common law marriage, they have all of the same rights and benefits as a couple who were married in a more traditional way (like by going to the courthouse or a church).  As described in greater detail below, if you have a common law marriage, it is treated just like any other marriage. Among other things, this means that if you want to break up, you will need to get a divorce or legal separation.

Colorado recognizes both heterosexual and LGBTQ+ common law marriages. Just as an opposite sex couple can choose to enter into a common law marriage, a same-sex couple can opt to do the same. All of the same rights and privileges of a same-sex ceremonial marriage apply to a same-sex common law marriage.

When Is a Couple Considered to Have a Common Law Marriage?

In the past, a common-law marriage was determined by a couple’s agreement to be married and an assumption of a marital relationship (such as by living together and sharing finances). This standard has evolved over time to reflect modern realities that common law marriage requires something more than a couple choosing to live together.

Statutory Requirements

First, under Colorado’s Domestic Matters law, the statutory requirements for a common law marriage are as follows:

• Both parties are at least 18 years of age; and
• The marriage is not prohibited (such as for bigamy or incest)

Intent To Enter Into a Marital Relationship

Second, the Colorado Supreme Court issued a new ruling on common law marriage in 2021 that clarified and updated the legal requirements for common law marriage. Under this ruling, the key question is whether the parties mutually intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation. 

Factors Considered By the Court

Courts will look at a variety of factors to determine if a couple had an express agreement to marry or if such an agreement can be inferred from their conduct. Factors to be considered include:

• Cohabitation
• Reputation in the community as being married
• Joint ownership of property
• Joint bank accounts and credit cards
• Joint tax returns
• Evidence of shared financial responsibility
• Joint estate planning (such as wills and powers of attorney)
• Beneficiary and emergency contact designations
• Using the other’s surname for yourself and/or your children
• Symbols of commitment (such as a ceremony, anniversary, etc)
• How a couple refers to each other (i.e., as “husband,” “wife,” or another indication of an intent to be married)
• A couple’s beliefs related to the institution of marriage
• A couple’s behavior when the relationship ended (a claim to be in a common law marriage is viewed as more credible when it is made immediately rather than years after the fact) 

Importantly, these factors are not a definitive test of whether or not a couple is in a common law marriage. Instead, they offer a way for courts to examine a couple’s behavior on a case-by-case basis to determine if they had a common law marriage.

If your common-law marriage is found to be valid in Colorado, other states generally must recognize it under the Full Faith and Credit Clause (even though the majority of states do not recognize common law marriage). It is important to understand what does and does not constitute a common law marriage to protect your legal rights. If you have questions, reach out to our Colorado Springs family lawyers for a free consultation.

Legal Issues Related to Common Law Marriages

Common law marriages are valid in Colorado, but they do raise thorny legal issues that are not present in ceremonial marriages. When you are married in a civil or religious ceremony after obtaining a marriage certificate, there is generally no question that you are legally married. With a common law marriage, it is not always clear whether a not a couple is considered legally married under the eyes of the law.

To gain access to benefits, some institutions may require an Affidavit of Common Law Marriage to reduce fraud. For example, before one member of the couple can be on the other’s health insurance plan, the insurance company may require proof of the marriage. This affidavit is not required by the courts. While it may be relevant in deciding whether a couple is married, it is just one of many factors to be considered.

The question of whether or not a couple had a common law marriage becomes important in a few different ways. The issue often arises when a couple breaks up, and one person claims that they were married and therefore they have to go through the divorce process (including division of property). It may also arise in other situations, such as if one person in the relationship dies and the other wants to claim their share of the estate as a surviving spouse.

Proving that a common law marriage existed is far more challenging than demonstrating that you were married in a civil or religious ceremony. Depending on the situation, there may not be any paperwork to prove that a couple was married. Even if there is paperwork, such as joint tax returns or even an affidavit of common law marriage, it might not be sufficient to prove intent.

The person seeking to assert that there is a marriage has the burden of proving that there is one. Judges will carefully scrutinize claims of common law marriage that appear to be self-serving (i.e., as a way to obtain financial benefits that they would not be entitled to if the couple were not married). The person claiming the existence of a marriage has to provide clear, consistent evidence demonstrating a mutual intent to be married.

There are many good reasons to want to be married…and to not want to be married. Marriage is a legal commitment that comes with certain rights and obligations. Because it affects your legal rights, you should be fully aware and make an affirmative decision to get married.

Ending A Common Law Marriage

If you are married (whether ceremonial or common law), then you will have to go through the process of legal separation or divorce to end the relationship. Your partner will also have certain rights to your estate if you pass away. Additionally, unless your decree or a written agreement says otherwise, spousal maintenance ends if the recipient remarries, including by entering a valid common-law marriage.

Living together without being officially married is more common than ever before. In Colorado, this can lead to a claim of common law marriage. If you are living with someone with whom you are in a relationship, there are steps that you can take to help avoid a common law marriage claim. These include:

• Not filing joint tax returns
• Not claiming each other as a spouse on insurance forms
• Not creating joint bank accounts (to the extent possible)
• Not signing an affidavit of common law marriage
• Not participating in any type of ceremony or exchange rings/wedding bands
• Not using a shared family name
• Nor referring to each other as “husband” or “wife”
• Not having your relationship status set to “married” on social media accounts

If you are in a committed relationship, we can help you navigate the legal issues related to common law marriage. Whether you are trying to prove that a marriage exists or that you were never married, our Colorado family law attorneys will advocate for you and fight to protect your interests.

Contact Our Law Firm for a Free Consultation with a Colorado Springs Family Law Attorney

People form families in all kinds of ways, including through common law marriage. Understanding how common law marriages are formed is critical when it comes to protecting your legal rights. Whether you want to end your common law marriage or need to defend against a claim of common law marriage, we can help.

Ascent Legal Group represents individuals and families in Colorado family law cases, including common law marriage divorces, legal separations, and related claims.  We use our knowledge of Colorado family law to advocate for our clients and help them achieve the best possible outcome for their case. To learn more or to schedule a free 30-minute consultation with a Colorado Springs family lawyer, give us a call at 719-256-0067 or fill out our online contact form.