There are many misconceptions about how people become common law married in Colorado. Some folks think it’s just living together for 6 months or a year or some other specific period of time. Some people think if you have a child with someone and live together, then you are common law married. The truth is it’s not that simple, not by a longshot.

Under Colorado law, determining if a couple is common law married is a case by case, fact intensive investigation. The general concept at play is did the couple hold themselves out to people as being married and did they do that enough to create a general reputation as being a married couple.

Some attorneys believe that unless people have filed joint tax returns, then no common law marriage exists. That is simply not true. I have handled many common law marriage cases and rarely do the parties file joint tax returns yet in several of the cases I have handled the judges still concluded that a common law marriage existed. In short, there is no easy test to determine whether you are common law married and if you think you are, I’d be happy to review the facts of your situation and give you my opinion.

There are lots of ways folks might hold themselves out as being married but cohabitation (living together) is essential. Additionally, having joint bank accounts, having property (cars or real estate, etc.) titled in joint names, filing joint tax returns or designating someone as a "spouse" on insurance or other documents can help establish the existence of a common law marriage.

Introducing someone as your husband or wife, wearing wedding rings, having children together or using the other person’s last name are all things that can evidence a common law marriage.

It is critical that both parties do things indicating a marriage. The law requires that there be an "agreement" to act as a married couple. This rarely takes the shape of two people sitting around and one day just agreeing to act as though they are married but rather the "agreement" is evidenced by both parties doing or saying things that indicate that they both treat each other as spouses.

Like many areas of the law, a lot depends on the judge handling your case. I once had a judge determine that a couple was common law married because the "wife" used the other party’s last name to be able to visit him in jail. This went on for less than 5 months and the parties had no joint accounts or property and filed no joint tax returns. There was even undisputed photo evidence of the "husband" participating in the "garter toss" ceremony at a recent wedding. Nonetheless, the judge concluded that a common law marriage existed. This leads to an important point: once the common law marriage is established, there is no such thing as a common law divorce. In other words, once a common law marriage exists, the only way to end it is through a legal divorce proceeding in court. For example, I handled a case where the parties lived together as husband and wife but then lived apart for over 10 years before a divorce case was filed. "Husband" claimed he was never married and repeatedly brought up the fact that they had not lived together in over 10 years. The judge determined that prior to the 10-year separation, the parties held themselves out as married and thus, they remained married until a divorce proceeding was completed.

One last tidbit, you cannot be common law married to a person if that person is still technically legally married to someone else. So if you live with someone for 10 years and file joint tax returns, have children together and tell the world you are married but prior to all that the other person was "legally" (by proper license and ceremony) married to another person and never obtained a divorce from that person, a common law marriage cannot be created due to the prior existing legal marriage.

As an aside, the issue of common law marriage can arise in probate and criminal law setting too.

I have handled common law marriage cases for over 15 years, tried cases throughout Colorado and would be happy to discuss your situation with you.