Confused as to whether you are common law married? I have had many clients and potential clients ask me to tell them whether they are “common law married.” There is, usually, no straight forward answer to this question.
There is a common misperception that a couple is common law married if they have been cohabitating for seven years, or for a certain period of time. This isn’t true in Colorado.
The Colorado Supreme Court defined common law marriage as the following in People v. Lucero, 747 P.2d 660 (Colo. 1987): “common-law marriage is established by mutual consent or agreement of parties to be husband and wife, followed by mutual and open assumption of marital relationship.”
So, what does that mean? In sum, the Court is going to do a two-prong test: did you and your spouse believe and agree you were married? And, did you both hold yourselves out to the community that you were married?
Generally, the first prong is a “he-said/she-said” dispute between the parties. One person will tell the Court that they did agree they were common-law married, and the other person will say that they were not common-law married. There often isn’t evidence for the Court to look at other than the parties’ testimony.
The second prong, whether a couple held themselves out as married to the community can be shown in a variety of different ways. Did the couple tell their friends and family they were married? Is there a witness that will testify to such? Did they wear rings on their left ring fingers? Does the Wife use Husband’s last name? Did they file taxes together? Did one person claim they were married to carry the other on his or her health insurance? Do they have children together? Have they resided together for a long period of time? Did they introduce each other as Husband and Wife to strangers? Did they have a ceremony that was like a wedding ceremony? There can be many other ways to show they held themselves out as married; these are just a few examples.
Usually, couples can say yes to one or more of the questions above. However, the Court does not check the boxes and say, you met 5 out of 10 of the requirements, so you are common-law married. Instead, the Judge has discretion to look at all the evidence and decide whether, when it looks at everything cumulatively, there was a common law marriage. As stated by the Colorado Supreme Court, “determination of whether common-law marriage exists turns on issues of fact and credibility, which are properly within trial court’s discretion.” Id.
What if the Court determines there is a common law marriage? Then, if you want to separate, you will need to get divorced in the exact same way as people do who have a traditional marriage. Furthermore, all the same rights and obligations may be applicable in your case: division of property, debt, maintenance, and division of attorney fees.
The next question usually is, when did the marriage come into existence? Even if a common law marriage exists, it may be worth fighting over the date it began. As of January 1, 2014, the Courts look at guidelines to determine whether maintenance should be awarded. Generally, for a marriage of more than three years, if there is a discrepancy in the parties’ income, maintenance will be awarded. Furthermore, any assets you acquired before the marriage would be considered separate property, and any assets acquired after the date of marriage are, generally, marital and thus divided equitably. This means that the longer you were married, the more you will likely have to divide in way of assets and debts.
If you are unsure as to whether you are common law married, you may want to meet with an attorney to see what your options are when proceeding with a divorce or other type of case.
