Common law marriage is a legal concept that applies to couples who are in a relationship that has the appearance of a marriage, but hasn't been formally sanctioned by the state (such as by the issuance of a marriage certificate). A valid common law marriage typically confers both the benefits and obligations of a formal marriage.
Whether a common law marriage exists depends on a number of factors. First and foremost, a state has to acknowledge the legitimacy of common law marriages. It if does, then the validity of the marriage will hinge in large part on how the couple view the relationship, and how they act on that perception.
Colorado has recognized common law marriage for well over a century. And it's one of only a handful of states that still permit it. In Colorado, a common law marriage is established by the mutual consent of two people to be married (an agreement to live together as spouses) and a mutual and open assumption of a marital relationship, meaning the couple hold themselves out to the public as being married.
In addition to the "consent" and "open assumption of the marriage" requirements, spouses wishing to prove a common law marriage today 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 by law. (C.R.S.A. § 14-2-109.5.)
The following types of marriages are prohibited:
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 who lived with a partner under the good faith belief they were married. This could happen, for example, where a couple get married, but one spouse didn't know the other was still technically married to someone else. Putative spouses have the same rights as legal spouses, including the right to alimony and property. (C.R.S.A § 14-2-111.)
You can't formalize a common law marriage, per se. To legally formalize your relationship, you'd have to get married using the traditional route—obtaining a marriage certificate.
That said, if you'd like documentation directly related to your common law marriage status, you can complete an Affidavit of Common Law Marriage. Colorado provides a form for this. The form states your ages, the fact that there are no impediments to your marriage, and that you are, in fact, married.
You can then bring this form to the county clerk's office to be recorded. But be aware that the form isn't proof positive that you're in a valid common law marriage. It's just one of the things a judge will look at in making that determination.
Now that you know the basics of common law marriage, let's look at some frequently asked questions.
Most definitely. Remember, once a legal common law marriage is established, it's no different than a traditional marriage. If you want to end a common law marriage in Colorado, divorce is the path you'll have to take. That means that all of the divorce laws that impose responsibilities and allocate rights around dividing marital property, alimony, child support, and child custody, will apply to you and your common law spouse.
Just to be clear, there's no legal procedure specifically designated for common law divorce. Colorado law only provides for one standard divorce process, whether for traditional marriages or common law ones.
If a spouse in a viable common law marriage dies without a will, the surviving spouse is normally entitled to the inheritance benefits provided for under the state's laws, as well as other death benefits that may exist, such as through a deceased spouse's pension. But having a will greatly reduces the chances of a problem arising, especially if your spouse's other relatives claim that a common law marriage didn't exist.
Contrary to popular belief, there's no minimum time period for cohabitation. All the law requires is that you live together and meet the other common law marriage conditions.
No. The other elements of a common law marriage must be present.
It certainly does. As indicated earlier, holding yourselves out as married is crucial to establishing a common law marriage. If you consider yourselves married, you'd better make sure those around you are fully aware of that.
If you don't want your relationship considered a common law marriage, don't send mixed messages. Any public declarations you make about your marital status, for any reason, can come back to haunt you later. One thing you can do to bolster your claim that your relationship isn't a common law marriage is to prepare and sign a notarized document to that effect.
Absolutely. Here's a list of some actions that could help you support your claim:
And, as mentioned above, consider filing an Affidavit of Common Law Marriage with your county clerk.
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.