Protect Yourself During Divorce
Common law marriages in the U.S. were really a matter of inconvenience. That is, the inconvenience of locating someone qualified to perform a marriage ceremony. In the old and often wild West, it was even more difficult to locate an official empowered to perform the ceremony.
The phrase "common law" originates with England and refers to those non-ceremonial marriages that were valid under English law. In the 1877 case Meister v. Moore, the U.S. Supreme Court held that a non-ceremonial marriage was a valid enforceable marriage, unless a state’s statute forbade it. Colorado’s statutes have not invalidated common law marriages and, consequently, they continue to this day. In addition to Colorado, only nine other states and Washington, D.C., continue to allow the establishment of a common law marriage. Those nine states are Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah.
A common law marriage is one in which the couple hold themselves out to be married.
The common law marriage is not a lesser, weaker form of marriage—in the eyes of the law, it enjoys all the rights, benefits, and burdens associated with a ceremonial marriage. The common law spouse is entitled to Social Security benefits derived from the other spouse’s work record.
The IRS also recognizes common law marriages. If a couple with a Colorado common law marriage relocates to a non-common law state, such as Arizona or California, their marriage remains valid.
To end a common law marriage before the death of either spouse, a divorce action is required. A petition for dissolution of marriage must be filed and an order issued from the court dissolving the marriage. That means a division of the couple’s property, addressing issues of child custody, child support, parenting time, spousal maintenance, all the same issues involved in dissolving a ceremonial marriage.
So what are the elements of a common law marriage in Colorado?
- Consent: The decision to marry must be consensual and voluntary.
- Unmarried: Both individuals must be free to enter into a marriage contract (meaning neither is already married to someone else).
- Cohabitation: The couple lives together continuously.
- Intent: Both individuals intend and mutually agree that they are married.
- Public: The couple holds themselves out publicly to be married, and so establish a reputation in the community as being married.
When a couple’s relationship deteriorates and a divorce action is imminent, the parties will need to establish the existence of the marriage. It is possible that one party seeks to prove there was a common law marriage, but the other seeks to refute any marriage. It becomes a matter of proof:
— Who understood the couple was married?
— Did the couple hold themselves out as married to the government by filing tax returns as "married" under penalty of perjury?
— Did one party take the other party’s surname?
— Did they buy property together as joint tenants?
— Did they have joint financial accounts?
— Did they name each other as spousal beneficiaries on insurance and retirement accounts?
— Did they refer to their married status in conversations with people?
— Did they join clubs or register as married members?
— Did they enter into leases and contracts as a married couple?
— Did they notify an employer of the marriage?
One last note. Because there is no certificate of common law marriage, it is essentially undocumented. Documentation supporting the existence of a common law marriage is often necessary to qualify for benefits (for example, by an employer or insurer). In that situation, the spouses may execute an affidavit which is sworn to and then notarized. The affidavit may be recorded with the Office of the Clerk and Recorder in the county where the couple resides, allowing them to get a certified copy, their documentation, whenever needed.
