In recent years it has become customary for couples to cohabit together, share joint bills, and raise families together without the commitment of marriage. So how does the court determine if you are common law married and whether you need a divorce?
The Colorado Supreme Court recently updated requirements for common law marriage. In January 2021, the supreme court revisited the test for proving common law marriage that was enacted in the previous common law marriage case, People v. Lucero (CO. 1987), in three new Colorado cases.
We’ve had this question asked plenty of times over the years, and the new criteria in Colorado regarding common law marriage merits covering the topic in more detail.
In the past, the court took a marriage into consideration if you cohabited, shared bills, both consented in being a husband and/or wife, had joint accounts, and filed taxes together. In Colorado, there is not a specific time in which you must do any or each of these things. If there wasn’t enough evidence of all or some of these requirements, you may be considered not married in the eyes of the court. There are not a set of rules that will automatically determine you are common law married; however, the criteria can be somewhat more flexible than in other states. For example, in one of the cases the couple was assessed as being common law married even though they did not own joint bank accounts, nor did they file taxes together in the years they were living together- but the supreme court recognized the validity of their marriage because they were able to prove they were committed to each other and intended to be married. Ultimately, the court will decide whether there is enough evidence to prove if you were, in fact, married.
Here is what Colorado Modern Family Law attorneys had to say about the updated criteria…
“Colorado recognizes common law marriage as a valid marriage. There is no requirement that you hold a marriage certificate in this state. Contact a lawyer to determine if you are married at common law. If you are married, and you would like a divorce or legal separation, you will need to file for relief with the Court” — Karlee Stoppenhagen, Managing Partner (Fort Collins, CO)
“I would argue that the rulings clarify the existing framework and may make it easier to claim a common law marriage existed, as the requirement to publicly hold themselves out as being married has been significantly weakened. However, the contextual analysis the Court will have to undertake remains fact and individual case-specific and those wishing to assert or defend against a claim of common law marriage should seek the counsel of a knowledgeable attorney on the subject.” — Brian Litzinger, Senior Attorney (Denver, CO)
Although California does not recognize common law marriage, they do take a common law marriage from Colorado or any other U.S. state that recognizes common law marriage into consideration. This is allowed under Marvin’s Law and therefore requires dissolution of marriage because the couple was technically married, as they operated under the belief that they were actually married in the prior state.
Here is what California Modern Family Law attorneys had to say about common-law marriages…
“There is a de facto marriage where you both believe you are married, maybe even had a ceremony, held yourselves out as a married couple, but on a technicality aren’t married. But that’s not the same as an automatic trigger after a certain amount of time cohabitating.” — Diane Nguyen, Managing Attorney (Oakland, CA)
“While California does not outright recognize common law marriage, unmarried couples who have been together for an extended period of time and meet specific requirements may have rights to financial compensation similar to what is available under California community property laws. California will also recognize a common law marriage that is valid in another state and will impose the same rights to financial compensation and property as California laws.” — Joy Diaz, Associate Attorney (Oakland, CA)
Georgia, Idaho, Oklahoma, Pennsylvania, New Hampshire, and Ohio have banned common-law marriages, but will still recognize marriages prior to the ban if the couple meets all the requirements.
The rules for common law marriage are not set in stone, each couple has their own situation that may not fall under some of the common criteria. Our attorneys are available to answer those questions for you.
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