Common law marriage is still recognized in Colorado. To be considered common law married, in this state, the couple must cohabitate, mutually agree to be married and hold themselves out to the public as a married couple. It is important to note that there is no duration requirement associated with the cohabitation in common law marriage.
The difficult issue in this area surrounds the agreement requirements; the agreement need not be an express agreement and can be implied based on the parties’ actions. In determining if a common law marriage exists, the courts can look to the following factors: whether the parties filed joint tax returns, if one or both parties listed the other as a spouse on insurance forms or retirement plans, holding joint property such as real property or bank accounts, the woman taking the man’s surname or vice versa, wearing rings symbolizing a marriage and whether or not the couple attended an informal marriage ceremony. All of the above factors do not need to be proven if one party disputes that a common law marriage exists; if there is a dispute the determination will be made by the Court.
In my experience, a person may find themselves in a dissolution proceeding when they never intended to be married in the first place. By way of example, let’s say a man and woman start a relationship with one another and decide they wish to purchase a home with one another. They move in to that home together and open a joint bank account to pay for the expense of their joint property. One year later they decide to file joint tax returns listing themselves as a married couple because a friend advised them of the tax incentives associated with filing jointly. The parties also wear rings to symbolize their commitment to one another. On occasion they refer to the other party as husband or wife because it is easier and more romantic then labeling that person as their significant other, etc. In this situation, one party could easily file for dissolution of the marriage and claim a common law marriage existed. If the other party disputed this assertion then the court would be tasked with making the final determination.
A dissolution proceeding has the potential to lead to one party being obligated to support the other party through a spousal maintenance order, and can lead to the determination that property acquired after the date of the marriage is marital property subject to being equitably divided. Knowing what the court will review in determining if a marriage existed is helpful in avoiding behaviors that may later be deemed to be implied evidence of an agreement that a marriage exists.
Greater security against a later claim of common law marriage may be found in a cohabitation agreement. For instance, the parties, in a cohabitation agreement, can expressly provide that neither party intends to be married. This agreement can later be used as evidence that there was no agreement that the parties are married.
A cohabitation agreement can also be used to enumerate each party’s responsibility, interest in and obligations regarding jointly owned property such as a jointly owned residence. For instance, what happens to the home if the parties later decide not to continue the relationship, how will the expenses for the home be paid, and what interest does each party hold in the property at issue. An agreement regarding terms such as the ones identified in the preceding sentence can alleviate the later need for litigation between the parties. In most cases, specifications regarding each party’s obligations in a cohabitation situation can lead to reduced conflict in the event of an end to the relationship.
Nicole Vette is a Durango attorney with the law firm of Anderson & Baker, LLC, which specializes in domestic relationship law. Reach her at nv@andersonbaker.com.
