How to Prove Common-Law Marriage in Colorado

Colorado is one of a few States that recognize common-law marriage. This is convenient for Centennial Staters, who might prefer to choose their partner and move on rather than stress over an intricate wedding. There are some drawbacks, however, including the uncertainty some cohabitating couples may experience regarding their status. One partner may feel more committed than the other and not discover this until the break-up. If you’re a partner who feels their former commitment deserves legal recognition, you may wonder how to prove your relationship was a common-law marriage in Colorado. 

A common-law marriage is formed when both parties mutually agree to live as a married couple. The parties must follow this agreement by presenting themselves as a married couple to their community.

This can include:

• One party taking the other party’s last name,

• Introducing each other as “my husband/wife/spouse,”

• Commingling finances,

• Engaging in joint estate planning,

• Filing taxes as married jointly, etc.

No licenses, ceremonies, or papers are needed to establish its validity. However, conduct of the parties, their history, even a paper trail evidencing the existence of a common-law marriage is vital. For example, if you do not file your taxes as married jointly, a Court may not only question the validity of the common law marriage, but it could result in tax fraud implications as well.

Those in a common-law marriage enjoy almost all of the rights and duties as individuals in a formally recognized marriage. They are also generally entitled to the same divorce process.

When Parties No Longer Agree

A paper trail or other evidence is critical because the “mutual agreement” often flies out the window when common-law couples split. Typically, the partner with fewer assets will push for marriage recognition entitling them to divorce benefits like:

• Equitable asset distribution of property,

• Spousal maintenance, and

• Child support

The partner with greater assets and income will often argue against establishing a common-law marriage. They want to keep what they consider theirs and not support the former partner.

Finding or Not Finding a Common-Law Marriage

When two parties dispute whether they had a common-law marriage, the decision is made at a court hearing. This means both sides must submit arguments and evidence backing their claims.

This is a zero-sum proposition. The court will either rule that a common-law marriage existed or not. There is no middle ground. Therefore, knowing what a court will look for as proof of a common-law marriage is important.

Two key elements are required to prove the existence of a common-law marriage: mutual agreement and open assumption of a marital relationship.

As outlined in the Colorado Supreme Court case In Re Hogsett (2021) — some of the indicators of these two elements include:

• Acting as a married couple in public

• Living together

• Sharing a joint bank account

• Owning property together

• Supporting each other financially

• Celebrating anniversaries, exchanging cards and gifts, and other symbols of commitment

• Filing taxes jointly

• Joint estate planning, such as wills and powers of attorney

• Obtaining benefits, such as health insurance, together

• Listing each other as emergency contacts

• Listing each other as life insurance or social security insurance beneficiaries

• Identifying as spouses on official documents

• Sharing one partner’s last name

Additional prerequisites for any marriage also apply, such as:

• The parties are free to marry; neither is already married

• Both are of legal age (18), or 16-18 with parental consent

• The parties must not be related to each other; for example, a brother or sister

Evidence Establishing Common-Law Marriage

The documentation needed to prove or disprove most of the above indicators should be self-explanatory.

For example, mail and bills addressed to each partner should list the same address to demonstrate shared residence. Lease agreements, property deeds, and evidence of joint finances and property ownership are also effective. Tax returns and insurance forms can also prove or disprove mutual intent to live as married spouses. Even birthday, anniversary, or other greeting cards can help establish a common-law marriage, especially if one partner refers to the other as my “wife” or “husband.” 

I’ve found that tax returns are one of the most significant factors for a judge. Either the couple was married and held themselves out to the IRS and the Department of Revenue as married, or they committed tax fraud. It is illegal to file taxes jointly as a married couple if you should have filed separately as a single person.

Testimony and Written Statements

Documentation alone might not always be enough if it doesn’t show an intent to live as spouses. Other evidence, such as verbal statements or conduct, can sometimes be needed to manifest that mutual intent. 

I find written statements to be useless in court unless the same person testifies under oath and is available for cross-examination.

No Time Requirement

Many assume that once two romantic partners live together long enough, they are considered common-law married. This is not the case. The parties must only have lived together long enough to demonstrate the above factors.

Living together for any duration is insufficient without clear signs of mutual agreement to share a spousal life.

Updates to Colorado’s Common-Law Marriage Indicators

Prior case law served well enough as long as most common-law marriages matched traditional husband-wife unions. Times have since changed, and marriage itself has significantly changed since the landmark 1987 ruling.

By 2021, it was time for Colorado’s high court to address changing norms such as:

• More unmarried couples living together,

• More unmarried couples having children,

• Married couples not always taking the same surname,

• The recognition of same-sex marriages,

• More married couples opting to keep separate finances, and

• The diversity of cultural commitment symbols

January 11, 2021: Three Landmark Rulings Were Issued

Three Colorado Supreme Court rulings helped clarify what can constitute a modern common-law marriage.

The cases were In re: Estate of Yudkin, In Re Hogsett (mentioned above), and In re: Marriage of LaFleur v. Pyfer. You can read more about them in our article, which discusses same-sex common-law marriage and divorce.

These rulings established the determination of a common-law marriage should be based on a totality of circumstances. No single factor is necessarily decisive.

“When examining the parties’ conduct, the factors identified in State v. Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form.” — In Re Hogsett (Colo. 2021)

Courts Have Wide Discretion

With the rulings in Yudkin, Hogsett, and LaFleur, the court emphasized that common-law claims must be evaluated on a case-by-case basis. Courts must consider each couple's unique circumstances.

This means every case is unique — including yours, and Colorado courts are expected to treat them as such. No matter how strong your argument is, you cannot assume a court will rule in your favor. You’re going to need a good lawyer.

Other Matters Concerning Common-Law Marriage

We’ve already touched on the first matter requiring the confirmation or denial of a common-law marriage: Divorce.

To divorce, the parties must be currently married. One spouse often claims a common-law marriage while filing for divorce. If valid, the court treats the divorce as if it were a normal statutory marriage.

The other legal matters are:

• Criminal Law: In Colorado, a person cannot be compelled to testify against their spouse. (Colorado Revised Statutes 13-90-107 (1) (a)). There are exceptions, for example, when one spouse reports a crime committed against them by that spouse.

• Probate Litigation: Probate law governs how an individual’s assets and possessions are distributed after their death. If a person dies without a will, their surviving spouse generally receives the majority, if not all, of the estate. Even when there is a will, the surviving spouse usually has a claim to residual property. Surviving spouses also have the ability to make demands such as an exclusion for unclaimed property and a share of support from the estate. A common-law spouse has the same rights of claim as any spouse.

The Right Attorney Makes a Huge Difference

Whether seeking recognition for your common-law marriage or opposing such a classification, it is crucial to present the strongest argument possible. Hiring a family law attorney experienced in common-law marriage cases is your best option.

An experienced attorney will identify the key facts in your situation and build a compelling argument. They will assist you in preparing your case and guide you on the necessary documents and evidence that will be needed in court. If a common-law marriage is established, your attorney will ensure fair treatment throughout the process.

If the court finds no evidence of a common-law marriage, your attorney will provide guidance on your next step.

If your potential common-law marriage has ended, and you’re looking to prove the legitimacy of your common-law marriage in Colorado, it’s crucial to consult with a divorce attorney who can help you understand your rights. Conversely, our family law attorneys will diligently protect your assets if you believe you are not in a common-law marriage. Call 303-688-0944 for a case assessment.