cohabitation agreement

December 9, 2015 By Denver Family Lawyer

Will Colorado’s Common Law Marriage Rules Apply to Gay Couples?

Colorado is one of 16 states that recognizes “common law marriage.” That means that couples that are living together but are not actually married in a civil marriage ceremony might still be considered “married” by the state of Colorado and a Colorado court would be able to enter orders dividing the property and debts between the couple and even ordering one to pay maintenance (alimony) to the other.

There are certain things that the couple may do that will lead to this kind of a common law marriage holding, like holding themselves out to others as being married, having joint accounts and filing joint tax returns, etc. So now that same sex marriage is legal, how will Colorado’s common law marriage decisions apply? The answer is, we don’t know.

Because gay marriage is so new, there are no decisions yet about this or any other marriage or divorce law as they might be applied to gay couples. However, most family law attorneys are of the opinion that the rules and laws will be applied the same to heterosexual couples and homosexual couples.
So what does that mean for the gay couple who do not want to be married, but just want to live together. And what if one of them has assets that they wish to protect? And what if the gay couple wants to marry, but one of them or both of them have separate assets that they wish to protect from the possible ravages of a gay divorce?

We would recommend that a gay couple contact an experienced family law attorney to discuss certain asset protection vehicles such as a cohabitation agreement if they do not wish to or intend to get married. These cohabitation agreements can go a long way to protecting the parties from being considered common law married and can protect assets from being distributed to the other party in a divorce.
Likewise we would recommend that a gay couple considering same sex marriage contact an experienced family law attorney to discuss pre-nuptial agreements before marriage or post-nuptial if they are already in a marriage to protect assets and deal with distribution of those assets to avoid having a divorce court do it for them.

If you have any questions about Cohabitation Agreements, common law marriage or prenuptial or post nuptial agreements or any other family law matters and wish to discuss any of 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

August 31, 2015 By Denver Family Lawyer

What is a Cohabitation Agreement and Do I need one to avoid being Considered Common Law Married in Colorado?

Think of a Cohabitation Agreement as a prenuptial agreement for people who intend to live together but do not want to be considered common law married. As we have discussed in the last several blog posts, Colorado is one of 16 states that recognizes common law marriage. If a couple (and this applies equally to gay couples now that gay marriage is legal in Colorado) wants to live together without being considered “common law married” they should consider preparing and signing a Cohabitation Agreement.

Generally there are three types of conflict avoidance agreements that can be employed in the family law area: Prenuptial Agreements, Postnuptial Agreements and Cohabitation Agreements. The first two deal with the marital relationship while the third one deals with unmarried couples who only intend to live together and do not intend to marry. So, why would a couple ever want to enter into a cohabitation agreement? The answer is to protect property and assets.

If a couple that is living together is considered by the Colorado courts to be “common law” married, then all of the marriage and divorce laws of Colorado will apply to them, including the division of all of their property, debts and even the awarding of alimony or spousal maintenance. (See the prior two blog posts for a more detailed analysis of common law marriage.) This can come as quite a shock to one of the parties if they just thought they were living together with no strings attached and now half of their property is divided or they are ordered to pay the other party’s debts or pay them alimony. A Cohabitation Agreement can avoid a lot of these problems.

The purpose of an enforceable Cohabitation Agreement is to allow the couple to set out how they intend to resolve financial obligations while they are living together and to set out in writing how they will divide up any assets and debts when the relationship ends. Usually one party has more assets than the other and that is what may be the motivation behind seeking a Cohabitation Agreement.

To be enforceable, the parties to a Cohabitaion Agreement must have been very forthcoming to the other party about all of their assets and debts. In other words the courts will require full disclosure before they will enforce the agreement. As part of that full disclosure, the courts will require that one party not have been coerced into the agreement. The best way to avoid these problems is to make sure that both parties to the agreement have their own attorneys to advise them.

If one of the parties cannot afford their own attorney, rather than have just one attorney represent both of them, it is better if the party with the assets or income pay for the other party to have his or her own separate and independent counsel to avoid any problems with conflict of interest. That way the disclosures that both parties make about their income, assets and debt will be more likely to be considered full disclosure if the other party’s attorney has been involved in the drafting of the agreement and the providing and receiving of the disclosures.

Colorado courts will apply general contact law and equitable principals when deciding if a Cohabitation Agreement is enforceable. If you think you might need a Cohabitaion Agreement or the person you are thinking of moving in with is asking for one, give us a call. Our experienced Colorado attorneys can help you with the agreement.

Cohabitaion Agreements can also help a couple to decide before moving in together how they will do such things as divide up the rent costs, whether they will have a joint bank account, who will pay what bills, etc. It can be a valuable exercise to go through to avoid conflict later. It also makes it clear to the rest of the world that you are only living together and do not intend to be considered “common law married.” It is also very valuable if you intend to buy real property together or do any other kinds of business or financial ventures together. Finally, a Cohabitaion Agreement can keep you out of divorce court and protect your separate income and assets.

Many couples who decide to live with each other have been married before and may have divorce decrees or support obligations that they are dealing with. A Cohabitation Agreement can deal with these issues and set out each party’s rights and obligations to former spouses and children and keep the other party from getting drug into those kinds of issues. However, remember that a Cohabitaion Agreement cannot set forth anything with regard to children of the cohabiting couple. If you live together and have children together, a divorce court will have to decide all issues with regard to child custody and child support and the Cohabitation Agreement will not be binding with regard to those issues regarding children.

A Cohabitaion Agreement can take into account if the parties ever do decide to get married. Usually the issues to be decided in a Cohabitaion Agreement include, but are not limited to: separate and joint property and how to distribute each upon termination of the relationship; income compensation matters; expense allocation and responsibility for debts; dealing with real property ownership and distribution; and statements that the parties do not intend to be considered common law married.

August 25, 2015 By Denver Family Lawyer

Do I Have to File for Divorce from a Common Law Marriage in Colorado?

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

August 21, 2015 By Denver Family Lawyer

How Can I tell If I am (Common Law) Married or Not in Colorado?

Colorado is one of 16 states that recognize “common law marriage.” Those 16 states are:

• Alabama
• Colorado
• District of Columbia
• Georgia (created before 1997)
• Idaho (created before 1996)
• Iowa
• Kansas (both parties must be at least 18 years of age)
• Montana
• New Hampshire (only upon death)
• Ohio (created before 10/91)
• Oklahoma (created before 1998)
• Pennsylvania (created before 2005)
• Rhode Island
• South Carolina
• Texas (called an “informal marriage”)
• Utah (must be validated by court order)

So what constitutes a “common law marriage’? It requires that two people who legally have the right to be married (no siblings or first cousins, cannot be presently married to another person, etc.) desire to create a valid marital relationship without the benefit of a legal marriage ceremony as set out in Colorado statutes (C.R.S. 14-2-106). In other words, about all it takes is a mutual consent of the parties to be married and then an open assumption of the marriage relationship. (We will talk more about what “open assumptions” means below.)

It will be interesting to see how the Colorado courts adopt common law marriage now that same-sex marriage is legal. It should apply equally to same sex marriage as it does to heterosexual marriage, now that the “legality” issue has been removed.
What if you are living with someone and do not want to be “common law married”? How do you avoid it? Remember that in Colorado there is no statute creating common law marriage. It is a court created doctrine so you have to look at case law to see how it might be created. Also, case law can change at the whim of an appellate court, so this article deals with what it is now.

First, let’s discuss what does not create a common law marriage. An agreement to marry someone in the future does not create a common law marriage. It must be an agreement to be married now. Also, there is no set time that you have to have been living together to create a common law marriage. As long as you have agreed to be married, and hold yourselves out to others, you will be considered common law married. Finally, just living with someone in the same house is not enough to create a common law marriage. You also have to hold yourselves out as being married. Even having children together will not create a common law marriage by itself without the other requirements.

So, what does “holding yourself out” as married or an “open assumption of the marriage relationship” mean? Since there is usually no actual written contract to marry between people, it is sometimes difficult to prove whether a common law marriage has occurred or not. The courts look for evidence of cohabitation and “reputation” as husband and wife. The courts have determined that cohabitation and a reputation as a married couple will create an inference that the parties have consented to a marriage relationship.

In other words, all you have to do is cohabitate and claim to be married. This means holding yourselves out to others as being married. If your friends, neighbors and family members think you are married because you have told them you are married or done other things that would lead them to believe you are married, you will be considered common law married.

As in the dance, it takes two to tango in common law marriage. If one of the parties believes they are married and holds themselves out as married but the other does not and does not hold themselves out, there will not be a common law marriage because there is not a mutual agreement to be married. However, this could be a problem if the party that does not wish to be married has not done anything to protect his or her property and only asserts that there is no marriage after the other party has started a divorce proceeding and is asking for half of the others property and alimony or spousal maintenance. Prior to this happening, the party that does not want to be considered common law married should have done something to protect themselves. If you find yourselves in this situation, feel free to contact us for a referral to one of our experienced Colorado attorneys to help you.

There other facts that a court will look at to determine if a common law marriage exists. The woman using the last name of the man, the couple filing joint tax returns to take advantage of the marital deduction, opening joint bank accounts, purchasing real property together, mutual financial support, signing contracts together as husband and wife, even registering as husband and wife at hotels.

Why does it matter whether the State of Colorado will consider a couple “common law married” or not? Well, if the couple is not common law married, but are just cohabitating and they split up, it just like roommates moving out. Each keeps their own property and the other has no claim on them for support or for paying the others debts. If, on the other hand they are considered “common law married,” a marriage is a marriage is a marriage and all of the laws of marriage apply, including the dissolution of marriage statutes. There needs to be a divorce action filed and the courts will divide property and debts and may award support to one party.

Of course, whether you are “common law married” or not has no effect on child support if you have children together and split up. The Colorado Courts can enter child support awards to the parents whether they are married or not.

If you have any questions about whether you might be common law married or what the ramifications of that might be, feel free to contact us for a referral to one of our experienced Colorado attorneys for a free initial consultation. Give us a call at (720) 457-5959 or http://familylawattorneyindenver.com

Will Colorado’s Common Law Marriage Rules Apply to Gay Couples?

What is a Cohabitation Agreement and Do I need one to avoid being Considered Common Law Married in Colorado?

Do I Have to File for Divorce from a Common Law Marriage in Colorado?

How Can I tell If I am (Common Law) Married or Not in Colorado?

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