Common Law Marriage and Divorce

38424181_sThere are two types of marriage: statutory and common law. Colorado is one of the few states that acknowledge common law marriages. The foundation of a common law marriage is the mutual agreement or consent of two parties to be husband and wife, and an open and mutual assumption of a marital relationship.

For two individuals to be considered common law married in Colorado, the following conditions must be met:

  • Both parties must be over 18 years old
  • The parties must mutually agree that they are husband and wife
  • The parties must present themselves legally and socially as married
  • The parties must co-habitate as husband and wife after agreeing that they are married to the satisfaction of each other, even though no license exists

The most important element under a common law marriage is the mutual consent of a couple to be husband and wife. All other factors are typically considered evidence of this consent.

Many people mistakenly believe that a couple can be considered married in common law if they live together for a long enough period of time. While co-habitation for an extended time period may help a couple show their willingness to enter into a common law marriage, there is no time requirement to establish a common law marriage in Colorado.

Although there is no set standard for the court to follow, the courts will look at a number of different factors when making a decision about the existence of a common law marriage. Ultimately, however, a Colorado family law judge may determine whether or not there is a common law marriage.

When it comes to terminating a common law marriage in Colorado, divorce and death are the only options. There is no such thing as a common law divorce, which means that the couple must follow the same laws and procedures as a legal divorce in their state.

If a spouse files for a divorce, one of the issues the court hearing the divorce must first decide is whether or not a common law marriage actually existed. This marriage can be evidenced by tax returns, insurance documents, and other legal documents showing the use of a hyphenated or common last name. Family and friends may also be asked to testify regarding a couple’s conduct as husband and wife. Such proof of common law marriage is essential because one spouse may claim to have never been married at all.

Since the state recognizes common law marriage as a valid and legal marriage, the divorce must then address the same issues involved in any dissolution or divorce. Once it is established that a common law marriage actually did exist, the court will then decide on issues regarding parental responsibility of the children, child support, alimony, property distribution, debts, and all other issues brought about by a divorce. If either spouse wishes to get married in the future, that marriage will be deemed invalid if the common law marriage is not dissolved.