Common law marriage – what is it in Colorado?
Not too long ago, Colorado amended its common law marriage law in the state and now the necessary conditions to qualify as common law marriage in the state are as follows: 1) you must agree to be married, 2) the agreement "does not depend on a particular form of ceremony," 3) you have lived together in Colorado after the agreement, and 4) you are legally able to marry. Note that with the exception of #4, no other evidentiary requirements have been added. Common law marriage may be created when married couples cannot show proof of a valid marriage license. It does not change your other legal rights when you do obtain a marriage license. For example, if you were common law spouses and then obtained a marriage license, you still do not qualify for support under the law from the date of common law marriage as opposed to the date of your legal marriage. Common law marriage has also not been formally abolished in Colorado. Although a couple that is considered common law married may obtain a marriage license, the common law marriage may still be recognized by the courts. To survive as a common law union in Colorado, the couple must show the following under statute to prove validity: 1) that your common law relationship existed , and 2) that it was ended pursuant to the law for divorce (and other requirements). Examples of proving that your relationship existed are in the form of documents (i.e. leasing, bank, or credit accounts) such as: 1) birth certificates (a child can show that you both lived together) 2) photos of couples on trips 3) affidavits of witnesses who can attest to your relationship 4) sometimes a request for the child’s paternity can be evidence of your relationship. The factors that the court applies to determine the validity of the relationship include: 1) mutual assumption of a marital relationship 2) a common residence (i.e. sleepovers to weekends at the same house) 3) representations to others 4) other factors such as joint property, social media posting about the relationship, children, joint tax returns, etc. This statute was only passed in 2011 in Colorado and not without its critics. Its purpose was that couples have a way to show that they lived together without being asked for a marriage license or without having to divorce by going through a common law marriage. It reduced some of the uncertainty that existed under the common law because couples in common law marriages had all of the same rights as a married couple.
Who owns what – marital property in a common law marriage
Like traditional marriage, partners in a common law marriage divide property upon separation and/or death. However, the manner in which property is allocated is slightly different.
Common law marriage follows the law of equitable distribution. The general rule in Colorado is that all property acquired during the marriage is the joint property of both spouses, regardless of how legal title to the property is titled. When a divorce is granted, the court may divide the property "without regard to marital misconduct" in such proportions as the court finds just, after considering the relevant circumstances of the marriage.
If the marriage is not to be dissolved because one of the spouses claims legal separation, the court can still divide the property "without regard to marital misconduct" between the spouses "in proportions the court determines to be just after considering the relevant circumstances of the marriage" upon request of either spouse.
Similar to a traditional marriage, upon the death of one partner the surviving partner may make a claim against the decedent’s estate "without regard to marital misconduct." After an allocation for cost of probate, such a surviving partner is entitled to a spousal allowance (a dollar amount set by statute) as well as a homestead exemption (an allowance for a portion of the equity in the decedent’s value in the home). If a probate estate is insufficient to satisfy these costs and allowances, then the court may divide community property of the common law marriage and any community property acquired by either spouse during the marriage.
How to prove that common law marriage is valid
In order to prove a common law marriage in Colorado, one must provide sufficient evidence that the intent of the couple in question was to be married. Although proving a common law marriage can be difficult, there is still a wide-range of evidence that can be used to establish the existence of such a relationship. This evidence will vary depending on the circumstances of the relationship, and what is acceptable can vary from judge to judge; therefore if you are not sure what evidence is sufficient to prove a common law marriage, you should seek consultation from an attorney familiar with such cases.
In general, in order to prove a common law marriage, the couple must first show intent that they were married. In addition to the evidence regarding intent, the evidence must demonstrate that the couple cohabitated and held themselves out as married in public. Some of the evidence commonly used to establish a common law marriage includes copies of joint tax returns, joint credit card statements with both names, shared vertical keys such as insurance, bank accounts, driver’s license, titles to property, and voter registrations. The court will look to see if the parties had the ability to make joint decisions and whether there were other parties such as significant others, other family members or children who held them out as married.
Ultimately the facts and circumstances will dictate what evidence is appropriate in a specific case involving common law marriage.
Problems that may arise with a common law marriage
Legal disputes can arise in the context of a common law marriage primarily in the area of property rights. For a common law marriage, the issue is whether the parties intend to enter into a marriage recognized by Colorado law. Issues that historically arise for a party looking to set aside a common law marriage are whether there was consent and capacity to form a marriage, whether the parties cohabitated, and whether they generally held themselves out as married to the public. Because Colorado has abolished the need for any ceremonial marriage for a valid marriage, a divorce in terms of untangling assets and liabilities is just as important as in a ceremonial marriage. The issue is whether a common law couple has property interests in the property that they have acquired together. Generally , Colorado courts look to see whether the property in question is marital property (meaning that it was obtained during the marriage). If so, there is a presumption of joint ownership. When a court finds that there is joint ownership, the court then must classify the property as marital or nonmarital.
To designate property marital, courts look at various factors, including the following: It is important to note that there is a presumption that all property owned by either party is marital. When looking at how various assets and debts were categorized during the marriage, a party to the divorce should be aware of what they said to the court during the filing of the initial domestic action. A party cannot say something was a credit card debt and then later say it is an asset of the marital estate.
Who gets what – protecting your property rights
There are steps that Coloradans can take to protect both their individual and marital property during their common law marriage and after a couple separates. Because Colorado does not have a statutory common law marriage process, a clear and well-drafted agreement at the outset is essential to protect your interests. Our Colorado law firm advises clients on such agreements, which can also help avoid future conflict. We recommend that all parties consider a written cohabitation agreement that includes:
Cohabitation agreements (also called domestic agreements and premarital agreements) can help preserve your individual property even if the relationship ends on a sour note. For instance, we have seen cohabitating couples enter into an agreement that allows them to keep an individual ownership interest in their home even when the other partner contributed financially to the purchase of the house. This is simply one example amongst many.
Disputes also frequently arise between unmarried partners over other property that is acquired during their relationship, such as personal property (e.g., furniture, consumer goods, vehicles) and bank accounts. Our Colorado common law marriage attorneys help our clients cover all aspects of their property and invest in a resolution to the potential problems that may arise down the road. A cohabitation or domestic agreement can be very helpful in these situations.
The division of property is often the biggest challenge in a dispute over common law marriage. Individual circumstances vary, but without an agreement that is useful to both parties, the relationship can become even more contentious.
Getting help from a lawyer
Experienced Attorneys Can Help Sort Through These Issues
Though common law marriage is relatively rare in Colorado, a common law spouse has the same property rights as a formally married spouse. As a result, it is extremely important for those who have entered into a common law marriage to contact an experienced family law attorney to discuss the legal rights and obligations that arise from these unions.
Generally, any property acquired by common law spouses during their marriage, including real estate, is considered to be marital property and is subject to division in the event of a divorce or legal separation. Moreover , each spouse has a presumption of full or equal ownership of such property. Whether a spouse has acted to divest himself or herself of ownership or ownership rights may be evaluated as part of the divorce.
Further, equitable division of property or assets owned by common law spouses may involve complex issues of valuation and determining how to divide the marital estate. In addition to dividing joint bank accounts, vehicles, and other personal property, the process may also involve determining community interests in retirement accounts, businesses, and other assets.
If you have questions as to the legal impact of a common law marriage, or if you are facing a divorce or legal separation, it is important to speak to an experienced attorney about your rights.