Top 10 Myths About Common Law Marriage

Colorado is one of the few states that still recognize common law marriage.

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Gavel and Scales

Believe it or not, "common law marriage" is still alive and kicking in the state of Colorado. This article helps debunk some common myths surrounding this form of marriage.

Overview of Common Law Marriage in Colorado

There must be an agreement and an assumption of the marriage to the public

In Colorado, a “common law marriage” is established by the mutual consent of two parties to be husband and wife (an agreement to live as husband and wife) and a mutual and open assumption of a marital relationship, meaning that both spouses hold themselves out to the public as husband and wife.

The marriage must also be valid under Colorado statutes

In addition to the “consent” and “open assumption of the marriage” requirements, spouses wishing to prove a common law marriage must meet additional criteria laid out under a few Colorado statutes (legal codes).

In Colorado, a common law marriage entered into after September 1, 2006 is valid as long as both parties to the marriage were at least 18 years old at the time of the marriage. In addition, the marriage must not be “prohibited.”

The following types of marriages are prohibited: 

  • bigamous - one of the parties was still married at the time of the marriage, and
  • incestuous - a marriage between relatives (ancestor/descendent, sister/brother, aunt/nephew, or uncle/niece).  

However, even if a court finds that your marriage was and is prohibited, you may still be considered a “putative spouse,” which refers to someone that lived with a partner under the good faith belief they were married. This could happen, for example, where a couple gets married, but one spouse didn’t know the other was still technically married to someone else (bigamy). Putative spouses have the same rights as legal spouses, including the right to alimony and property. 

The fact is, many people get tripped up when they are trying to understand the legal ramifications of a common law marriage. These legal issues usually come up when a common law spouse decides to end the marriage and wants to figure out his or her legal rights and responsibilities.

Now that you know the basics of common law marriage, here are the "Top 10 Myths About Common Law Marriage” - debunked.

Top Ten Myths Debunked

Myth 1: If I am married by common law, it won’t affect my legal rights after a break-up, right?

Wrong. You could be subjected to the same claims for property division and maintenance (alimony), as you would face in a traditional divorce.

Myth 2: I can't be common law married unless I have been cohabitating for 10 years, right?

Wrong. There is no set time period under Colorado law to be declared common law married.

Myth 3: It doesn't matter if my friends and family think I am married, so long as I know the truth, right?

Wrong. In a legal dispute, count on your "ex" to claim otherwise and get all of his/her buddies to support that claim, especially if there is money involved. The key is whether you "hold yourself out" as married, and that vague term can get pretty expensive to legally prove, one way or the other.

Myth 4: If I have children with my significant other, I am automatically common law married, right?

Wrong. Not necessarily. The key is whether you hold yourself out as "husband" and "wife."

Myth 5: I told my insurance carrier that I am married so my partner could get benefits. This isolated action can't hurt me, right?

Wrong. Any public declarations you make about your marital status can come back and hurt you later.

Myth 6: So what if I am considered common law married, I can simply "annul" the marriage, right?

Wrong. If you are held to be common law married, you will have to go through a full-blown
“dissolution of marriage” (divorce) proceeding.

Myth 7: I can't be common law married unless I have plans to go through with the ceremony, right?

Wrong. You may be considered common law married even if you and your significant other have never even considered "taking the plunge" publicly.

Myth 8: So what if I filed a joint tax return, that is a federal issue, and it can't be used against me in a state court, right?

Wrong. It can and almost definitely will be used against you by your ex's lawyer.

Myth 9: As long as my relationship with my ex-boyfriend/girlfriend stays strong, common law marriage doesn't matter to me, right?

Wrong. If you die unexpectedly, your significant other may be entitled to inherit your assets, potentially depriving your biological heirs of a lot of money.

Myth 10: Okay, so maybe I have a common law situation. I shouldn't have to worry about this unless my relationship is about to end, right?

Wrong. You should be as informed as possible about your rights, as there are almost always steps you can take to protect yourself. Be informed, be cautious, and be proactive!

Should I Hire an Attorney?

If you have questions about your status as a common law spouse or about your legal rights and responsibilities in the event you end your common law marriage, you should contact an experienced family law attorney for advice.

Resources

For the statute governing common law marriage restrictions, see C.R.S.A. § 14-2-109.5

For a complete list of prohibited marriages, see C.R.S.A. § 14-2-110

Updated by: , Attorney

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