Colorado is one of the few states that still recognizes common-law marriage. In Colorado, common law marriage is when a couple is legally considered married without going through the formalities of getting married (i.e., obtaining a marriage license or conducting a wedding ceremony). In Colorado, there are both statutory requirements and case law requirements for establishing a common law marriage (we’ll get into it below). Additionally, we will examine real case law from Colorado to illustrate how courts evaluate these types of cases. Let’s get into it!
What is a common law marriage?
In essence, a common law marriage is when a couple is deemed legally married by state law without going through a formal marriage ceremony or obtaining a marriage license. For example, let’s take Joe and Suzie, who have been in a relationship for an extended period without formally tying the knot. If they fulfill the requirements set by Colorado for common-law marriage, they could be eligible for certain legal rights akin to those enjoyed by couples who have gone through traditional marriage procedures.
Why would someone want to be common law married?
The origins of the common law marriage doctrine are rooted in the protection of folks who have acted as spouses in good faith within relationships. Believe it or not–this phenomenon dates back to England and colonial America! Despite its decreasing prevalence in today’s day and age and the trend of states abolishing it, some states, including Colorado, still recognize common law marriages. Establishing a common law marriage in such states can have practical benefits, such as inheritance rights upon the death of one partner, asset division in case of “divorce,” and access to certain marital benefits like insurance coverage.
How to establish a common law marriage in Colorado
According to C.R.S. § 14-2-109.5, if you want to have a common law marriage in CO after September 1, 2006, both people must be at least eighteen years old, and the marriage can’t be against any laws (i.e., you can’t be related or already married). If you don’t meet these rules, the state won’t recognize your relationship as a valid marriage, even if it was made in another state.
In addition, Colorado case law further defines how to get a common law marriage in the state. In the recent 2021 case Hogsett v. Neale, the court explained:
“[A] common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. In assessing whether a common law marriage has been established, courts should accord weight to evidence reflecting a couple’s express agreement to marry. In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct.” Hogsett v. Neale, 478 P.3d 713, 715 (2021).
In plain English, a Colorado common law marriage can happen when a couple agrees to be married and acts like they are married. The important question is whether they both intended to share their lives together as spouses, with a committed, close relationship where they support each other. Courts will look at evidence of their agreement to marry, and if there’s no clear evidence, they’ll consider how the couple acted to decide if they had a common law marriage.
What conduct can establish a common law marriage in CO?
So, as you can see from above, there is certain “conduct” that a Colorado court can analyze and deem you as married under common law. Does that mean you and your live-in boyfriend/girlfriend could be considered common law married without you even knowing it?! Probably not… but keep reading to find out.
The Supreme Court of Colorado explained in 2021 in Hogsett that evidence of mutual intent to agree to be married may include:
- The parties’ cohabitation,
- Their reputation in the community as spouses,
- The maintenance of joint bank accounts/credit accounts,
- The purchase and joint ownership of property,
- The filing of joint tax returns,
- The use of one spouse’s surname by the other,
- The use of one spouse’s surname by children raised by the parties,
- Evidence of shared financial responsibility, such as leases in both partners’ names, joint bills, or other payment records,
- Evidence of joint estate planning, including wills, powers of attorney, beneficiary, and emergency contact designations,
- Symbols of commitment, such as ceremonies, anniversaries, cards, gifts, and the couple’s references to or labels for one another,
- The parties’ sincerely held beliefs regarding the institution of marriage,
- The parties’ behaviors after the relationship ended
- (See Hogsett v. Neale, 478 P.3d 713, 724–25)
The Court also mentioned that there’s not one single factor above that is dispositive of a common law marriage, but instead, will vary case to case. In other words, even if one couple owned property together, they may not be considered common law married, even though another couple did so and were considered common law married. It’s all about the situation, context, and each couple’s unique relationship.
Colorado case law about common law marriages
Let’s examine actual cases that have addressed whether a couple in Colorado has established a common law marriage.
A case where common law marriage was not established
In the most recent Supreme Court Colorado common law case (Hogsett), the Court created and used a new method to decide if a common law marriage existed. They looked at whether both people agreed to be married and acted like they were married. If there is no explicit agreement to be married–they look to certain conduct. The Court found that there wasn’t enough proof that both people intended to be married, even though they were in a long-term relationship. One of the partners said they didn’t believe in marriage, and the court believed that neither person really wanted to be married. So, they decided there wasn’t a common law marriage in this case.
A case where a Colorado common law marriage was established in another state
Let’s look at a very interesting (and recent) case, Nelson v. Richardson-Nelson, stemming from a Nebraska court, where a couple was arguing that they had established a Colorado common law marriage before moving to Nebraska. The court was tasked with determining if the couple established a common law marriage properly in CO before moving to Nebraska; if so, then the state would also consider them married.
In this case, Nebraska court considered various aspects of the couple’s relationship, including their intentions and actions regarding marriage, their financial arrangements, how they presented themselves to others, and their testimonies about key events such as obtaining a marriage license in Colorado in 1997 and a wedding ceremony in Nebraska in 2011. Based on these considerations and the credibility of the parties, the court concluded that a common-law marriage was established in Colorado in July 1997, even though they didn’t file the marriage license or have a ceremony at that time. The evidence showed that they lived together, shared household duties, and were recognized as married by family members. The court also noted that they continued their relationship until their separation in 2019, raising each other’s children and filing joint tax returns.
The bottom line? Based on the totality of the couple’s actions, it was reasonable to deem them married under Colorado law. (See Nelson v. Richardson-Nelson, 964 N.W.2d 463, 471 (2021))
The bottom line
Yes, you can be common law married in Colorado, and yes, it is one of the last few states to allow this type of marriage. It is not the recommended route to marital bliss, as it can come with the task of proving your “marriage” in court, which is much more difficult than just planning a regular old wedding (with all the correct formalities, such as marriage licenses). However, if you are trying to establish a common law marriage in CO, the court is going to look at whether or not there was an agreement to marry and the conduct of the parties in each unique situation. There is not one dispositive factor that can determine a common law marriage, but instead it must be looked at as a whole to understand if the parties were intending to be married.
Frequently Asked Questions (FAQs) about common law marriage in Colorado
Let’s dive into some of your burning questions about Colorado common law marriages.
Q: What if I get common law married in another state and then move to Colorado?
A: Colorado will recognize other common law marriages from other states as long as they were executed properly in such state, AND as long as they follow the requirements laid out in C.R.S. § 14-2-109.5, which include being 18 years old and not being a prohibited marriage (such as being related or already married).
Q: Will my Colorado common law marriage stand in other states?
A: Yes, most likely, but it will depend on each individual state’s laws. For example, in one of the cases above, Nebraska recognized a CO common law marriage for all intents and purposes!
Q: Do we have to live together for 5 or more years in order to be common law married in Colorado?
A: No! The CO common law statute nor does its case law require a certain number of years living together to create a valid common law marriage. It’s all about being over 18 and showing mutual agreement to be married or mutual intent to marry (refer to the conduct in the section above for what this means).
Kendra Strong-Tehrani, is an attorney in Colorado that specializes in Prenups and Estate Planning for busy professionals and families. By providing comprehensive legal services, she helps to keep her clients out of court and conflict. She loves to offer my guidance and support no matter what stage of life her clients are in. Book a Q&A with Kendra here.
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