What is a Common Law Marriage in Colorado?
In Colorado, common law marriage is defined as a situation where two people agree to marry and then live together as husband and wife. Colorado laws do not define exactly what constitutes a common law marriage, but a common law marriage is identified when it meets the following criteria:
1. The alleged common law couple must have legal capacity (i.e. eligibility to get married).
2 . The alleged common law couple must voluntarily and mutual agree to be in a marriage.
3. The alleged married couple must live together in Colorado (the couple may have resided in any state at any point in time, but it must be established that the couple lived in Colorado at the time the alleged common law marriage became valid).
4. The alleged common law couple must hold themselves out to the public as married.
Common Law Divorce in Colorado: Is it Even Possible?
Because Colorado has abolished common law marriages, some people assume that divorce is not an option for couples in common law marriages. That is not the case. Colorado law provides for the dissolution of a common law marriage just as it does any other marriage. The difference is that parties in a common law marriage must announce their relationship to the Court and prove that they were a common law couple rather than just roommates. This happens in a legal proceeding in front of a judge called a common law marriage validation.
Grounds for Divorce
Just like any other couple, those in a common law marriage can cite either irretrievable breakdown or irreconcilable differences as the grounds for their divorce.
The Process
To initiate the process of dissolving a common law marriage, a party must file for the validation of the relationship with the court. If the Court confirms that a common law marriage existed, the plaintiff can then proceed with the traditional divorce process according to Colorado law.
Your Rights and Duty During a Common Law Divorce
As a common law marriage in Colorado is regarded as a valid legal marriage under state law, the rights and responsibilities of the parties remain largely unchanged in the event of a divorce. The laws governing the grounds for divorce, asset division, spousal support (alimony), child support and allocation of parenting time to parents with minor children do not change because of a party’s marital status at the time the plaintiff in the divorce action files the action.
Because a common law marriage in Colorado is treated as a "real" marriage, as opposed to a "pretend" marriage, a court will not look behind the fact that the parties were married on the day of the filing of the action in order to determine if they should be treated as partners without the trappings of marriage under the reasoning that such a policy would destabilize marriage.
A court will consider the following factors in dividing property in which the parties have an equitable interest: the duration of the marriage, the parties’ income and source of income, the parties’ age and health, the contribution of a spouse as a homemaker and to the family unit, the value of each spouse’s property with due consideration of assets and debts assigned to each spouse, the marital agreement, the behavior of the parties during the marriage insofar as it affects the marital or acquisition of assets, the income or earning capacity of a spouse, the family or household bills and financial obligations, the tax consequences to the parties, and the value of the parties’ property immediately prior to the marriage and at the time of the divorce.
Because a spouse’s use of a marital asset may influence its value when the court is ultimately asked to determine the distribution of the item upon divorce, the monetary value of the spouse’s use of the asset will be considered, along with any tax consequences, in the overall distribution of the asset. If neither party’s use of the property or payment of the debt affected its value and there were also no tax implications, a court will not consider either party’s use of such property when distributing the asset and the debt attributed to the property.
One factor in favor of the court’s distribution of marital assets is that it does not have to set a specific value to the asset, if both parties agree its value is not ascertainable.
In determining whether one party is entitled to spousal maintenance from the other, the court may consider, in addition to the statutorily-mandated circumstances, the marital misconduct of either party. For example, if a court determines that the husband’s infidelity diminished the wife’s earning capacity, it may award a larger amount of alimony or designate the wife as the children’s primary caretaker, thereby also ameliorating the negative impact the marital misconduct had upon her earning capacity.
During the pendency of the divorce action, a court may make temporary orders concerning spousal maintenance, attorney fees and costs, child support, and the appointment of a parent to have primary care of the minor children.
How to Prove of a Common Law Marriage in Court
Evidence to Prove a Common Law Marriage Exists for Divorce in Colorado
To successfully establish the existence of a common law marriage, the following elements must be sufficiently evidenced:
There is no single category of evidence necessary to meet these elements. Several different types of evidence are admissible, provided that sufficient evidence is provided to establish a common law marriage:
- E.g., residential utility bills, bank accounts, and credit cards demonstrating that the putative spouses have shared financial accounts, or checks written from one spouse to another;
- E.g., photographs showing the couple – such as pictures of individuals on their honeymoon, or on previous anniversaries
- E.g., authorities providing identification to either party, such as driver’s licenses, school registrations, and military enlistments
- E.g., tape recordings made prior to the marriage alleging that the couple is married; or stating that one spouse has made the decision to enter into the marriage and the other spouse respects and will abide by that decision.
- E.g., a voicemail documenting the intention to marry.
- E.g., tickets to events indicating simultaneous attendance by both parties and photographs from events taken in such a way as to support the common law relationship.
- E.g., memorials, gravestones, and receipts for services, such as lawn care and cemetery maintenance.
- E.g., persuasive statements from the Colorado Court of Appeals in People v. Lucero, 841 P.2d 1087, 1090 (Colo.App. 1992), which held:
The situations in which we will presume a common law marriage existed despite a lack of direct proof of an expressed intent to enter into such a marriage must be limited to those in which the circumstances surrounding the continuous cohabitation of the parties have been shown to have been of a nature that any rational fact finder would consider them to be in reconciliation of the presumption of a valid marriage.
– E.g. , corroborating testimony from third-party witnesses, such as religious leaders or civic organizations; and the opinion testimony of experts.
The Colorado Supreme Court has stated:
When a marriage is proved by circumstantial evidence, it creates a presumption of continuation of that marriage until evidence is brought forward to refute it. Ingram v. Ingram, 895 P.2d 1070, 1073 (Colo. 1995) (internal citations and quotations omitted). Moreover, the existence of a common law marriage may be established through the parties’ own testimony without corroboration; however, such uncorroborated testimony must, at the minimum, be sufficiently specific as to the circumstances of the marital cohabitation. Ingram, 895 P.2d at 1073-74.
A presumption of validity arises if the party claiming the marriage begins as a marriage established by common law. At this point, the burden of proof may then shift to the opposing party to produce evidence in order to rebut the presumption of the common law marriage.
Despite this rule, the uncorroborated testimony of one party, without more, is not sufficient to establish a common law marriage. A presumption that a common law marriage existed may not arise unless the complaining party establishes a foundation showing the relationship in sufficient detail. Further, this is the required standard when establishing a common law marriage for the purposes of a decree of dissolution. Lucero, 841 P.2d at 1090.
The Colorado Supreme Court, in Ingram, adopted the test detailed in In re Estate of Litz, 849 P.2d 822, 826 (Colo.1993), which instructs that, to prove a common law marriage exists, the proponent must show:
(1) that the parties mutually and openly agreed to take each other as husband and wife; and (2) that the parties acted in accordance with that agreement. Ingram, 895 P.2d at 1073.
Common Law Divorce: These are The Problems
While on the surface, a common law divorce may appear straightforward, there can be numerous challenges and pitfalls that individuals could face throughout the process. One potential challenge is the ambiguity surrounding the couple’s exact date of separation from one another. What many people do not know is that even after separating, if you continue to live together or share any kind of resources, you may be assumed to still be married—even if your relationship has ended. Therefore, it is crucial to identify the point at which your relationship ended so you can begin to divide assets equitably. Another challenge relates to fairness in asset division. Every state has its own laws regarding marital assets, but Colorado law generally dictates that assets are subject to equitable distribution—that is, there is no "equal division," but rather the court decides what is fair. To be fair, however, the court should consider all factors and ensure that each spouse has equal opportunity to acquire assets and income post-separation. If the court does not make a fair decision in terms of asset division, it could be cause to have the court make different determinations, which could set the process back in terms of both time and money. Another consideration that presents a challenge to a common law divorce is the need for legal help. A common law divorce can still be complicated, and while you have no legal requirement to obtain legal representation, it’s in your best interests to meet with a divorce attorney who can guide you through the process and help resolve any issues that may arise. Finally, emotional hurdles can make a common law divorce more challenging. Some couples may not be prepared for the shock of their relationship ending and not know how to cope, which can result in a longer process as you seek to handle the situation in an appropriate manner. One of the most difficult aspects of any divorce is letting go of a relationship and moving forward with your life, and the emotional rollercoaster you may experience while going through this difficult time can result in a great deal of stress and uncertainty. It’s critical to be proactive when it comes to managing your emotions during a common law divorce so you can work toward achieving a successful outcome.
Common Law Divorce: Legal Representation
To navigate the complexities of a common law divorce in Colorado, it is highly advised to seek legal assistance. A qualified Colorado divorce attorney brings expertise and a deep understanding of the state’s laws and requirements. They can guide you through the process, ensuring that all legal aspects are properly addressed and that your rights are protected.
Your lawyer will help you gather all the necessary documentation, prepare a comprehensive statement of all the assets and debts to be divided, and strategize on the most favorable outcome for yourself and, if relevant, your children . Throughout the process, your attorney will provide you with relevant information on all aspects of your case, including navigating any potential adverse consequences of a common law divorce, such as common law alimony (spousal support), division of property and liabilities, child custody, and other essential factors.
If there a significant amount of marital assets and debt at stake, your attorney at Thomson & McNab, LLC can call upon outside experts, such as accountants and financial advisors, as necessary to help you achieve the best possible legal outcome.
As mentioned earlier in this post, the law of common law divorce and spousal support tend to favor women, particularly if they were financially dependent on their common law spouse. While a common law divorce can proceed without great difficulty, you still may benefit from the protection of an attorney.