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Colorado Divorce and Custody: Common Law Marriage


What Constitutes a Common Law Marriage?


A common law marriage is a legal union between two people that carries with it all the benefits and liabilities of a traditionally married couple even though a marriage license was never obtained.
People are often confused about the terms that define the legality of a common law marriage in the State of Colorado. Many believe that if they have lived with their partner for a certain amount of time that they have already established a legal union, but the length of time a couple has lived together is not a factor. Creating a common law marriage in Colorado depends on a myriad of factors, but most importantly it depends on the intent of both individuals to establish a marriage. When the parties involved present themselves to the public as husband and wife, telling the community that they are married, use the same last name, file joint income tax returns, and / or sign an affidavit of common law marriage, these can establish a legal union, i.e. a common law marriage. If the parties to a common law marriage choose to terminate their relationship, they must obtain a divorce just like those who married after obtaining a marriage license. Legally, common law married couples must abide by all the same laws as those who established their unions in a more traditional fashion.

U.S. States That Recognize Common Law Marriage:


The states that still recognize the validity of a common law marriage include: Alabama Colorado District of Columbia Georgia  Idaho  Iowa Kansas Montana New Hampshire Ohio Oklahoma Pennsylvania Rhode Island South Carolina Texas Utah

How is a Common Law Marriage in Colorado Established?


To establish a common law marriage in Colorado, couples must adhere to the following criteria:

  • Both parties to the marriage must be over the age of 18.
  • Both parties must mutually agree that they intend to be married
  • Both parties must live together in the marital home following their agreement that they are married
  • The parties must present themselves to the community as a married couple

What Determines the Validity of a Common Law Marriage?


If one party to the "marriage" says they are married, and the other party disagrees with this assessment, then a determination of common law marriage will be required. The courts must determine if there was a mutual intent to create a legal union .

Factors the court may consider in making a determination may include:

  • Having joint bank accounts, filing tax returns as a married couple, witnesses that will testify that they believe the couple is married, and/or an affidavit of common law marriage. 
  • It must be noted however that there is no single deciding factor that the Colorado court uses to determine if two people are common law married. If you have questions about common law marriage, it is wise to consult with an experienced family law attorney to discuss your rights and obligations according to Colorado law. To set up a consultation, please call Elissa Bercovitz. 

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