Sometimes couples that are living together in Colorado hear about the concept of “common law marriage” and wonder if they might be considered married by the state of Colorado and also become concerned about whether they will have to file for divorce if they split up or move out. Since Colorado is one of 16 states that recognize “common law marriage” (see the prior blog post for the list of states and the requirements for a common law marriage to exist) that is a valid question.
If you have met the definition of common law marriage, then you are just as married as if you got a marriage license and went through a marriage ceremony. The question of whether you are common law married will usually be a question of fact for a family law judge to decide. The Colorado case of People v. Lucero, 747 P.2d 660 (Colo. 1987) sets out the standard a Judge will follow. To be common law married in Colorado, a couple must:
• Be over 18 years of age and legally be able to be married (not first cousins, not already married to someone else, etc.)
• Have agreed with each other that you are married now (not in the future)
• Cohabitate as husband and wife
• Hold themselves out to the public as husband and wife
• Take the last name of the other party
Common law marriage is not created just because you:
• Live with some, even if you have the intent to marry in the future
• Open a joint bank account or own property together
• File joint taxes
While these other items can be evidence of a common law marriage, they do not necessarily create one. The problems come when a couple who is living together but does not intend to be common law married does things that a married couple would do, like filing joint tax returns where they list themselves as spouses to the government and putting the other on health insurance policies where they list themselves a spouses to get better rates or to get coverage. These can all be evidence of the couple holding themselves out to the public in general and the government and insurance companies specifically as being married. It may become very difficult to argue in a later divorce proceeding that they are not common law married, especially with the specter of claims of “tax fraud” if they were not really common law married when they filed.
If there is a common law marriage there must be a divorce filed if the parties split up just like for any marriage. The problem is what if one of the parties did not want to be subject to a divorce proceeding? Obviously, one of the parties will have filed for divorce to take advantage of the distribution of property and alimony or support payments because of a disparity in income and property. The party who does not wish to considered common law married will be trying to protect his or her income and property from the other but may not be successful in arguing against the finding of a common law marriage because of some of these issues. There are ways to avoid this situation, like signing a Cohabitation Agreement prior to cohabitating. We will talk more about these types of agreements in the next blog post.
If you are concerned whether you may be considered to have a common law marriage or not and wish to discuss this with one of our experienced Colorado attorneys, feel free to give us a call for a referral. The initial consultation is always free. Give us a call at (720) 457-5959 or http://familylawattorneyindenver.com