A Guide to Common Law Marriage in Colorado
Understanding common law marriage in Colorado requires a look at both the contract options and those situations where a court will recognize the existence of a marital contract. While marriage is the subject of specific legal statutes, that does not mean there aren’t some rather unique aspects to marriage or what constitutes a marriage that is exclusive to Colorado.
By common law, Colorado and several other states historically recognized the concept of a contract for marriage by agreement and mutual consent. In fact, such agreements for marriage were the norm until the latter portion of the 19th century. While now we rely substantially on formalities like licenses and certificates, the historical evidence would indicate that Colorado couples agreed to enter into a marital agreement and acted on that agreement in ways which gave rise to the full obligations which marriage represents today. Unlike many other jurisdictions, Colorado essentially retained this concept in sections 14-2-104 (specific performance or an action in equity) and 14-2-110 (actions to determine marital property rights.)
What does that mean though in plain terms. Primarily that it is important to consider how you were married when you are considering the related issues of divorce (dissolution of marriage) and separation (legal separation). It would be remiss to focus only on the formalities when entering a marriage and then only deal with informalities in a divorce setting. Where the court does not recognize the relationship you claim -or you do not have evidence sufficient to prove the relationship your claim you have -what does that mean for you?
Understanding a legal marriage contract is essential to both forming it and later dissolving it . Historically, under the common law doctrine, it was nearly impossible to prove a marriage existed. The bar was set extremely high. Post the 19th century, the basic definition of a marriage contract came to be intentional cohabitation as husband and wife.
While Colorado does have licenses and marriage certificates, in order to determine whether a common law marriage has formed, we look at entirely different proofs than those which deal exclusively in the for formalities of marriage. Essentially the analysis the courts uses is whether or not a relationship exists between the parties which is "marital" in nature.
Unfortunately parties to a common law marriage have very few protections. It is important to note that Colorado did not change its laws to decry the existence of common law marriages without first providing protections for such marriages to those who entered into them.
For instance, the courts have held that laws regarding premarital and separation agreements and the child support and maintenance statutes protect the interests of parties involved in a common law marriage. More importantly, parties who are married by common law have the same rights during the marriage and through distribution of the marital estate directly as a licensed couple.
The question of observance of the license or certificate requirements for Colorado marriages as being either magical carpet or favor is largely one of semantics. The bottom line is whether or not the parties have met the requirements of the statute or demonstrated that they have entered into an acknowledged marital contract.
The Effects of Common Law Marriage on Divorce
The recognition of common law marriage has a major impact on the process of divorce and the rights and obligations that each person has during a divorce. If two parties are in a common law marriage in Colorado, as soon as either party files for divorce, they are considered legally married under Colorado state law. This means that the parties must have a legal divorce proceeding. There may be social implications due to a common law marriage, so it is critical that you speak with an attorney before making any assumptions regarding your rights or obligations.
To be clear, if the parties are in a common law marriage, and one party files for divorce, they will be recognized as married regardless of the length of the relationship, and even if they were not legally married in a ceremony. It is important to avoid the use of the term "common law divorce," as there is no such thing. In order to be recognized as a "common law divorce," the parties must have lived as a married couple and filed for divorce. The term "common law divorce" confuses people and the process of divorce.
Common law marriage does, however, impact the process of divorce. Since they are legally married, they must go through a legal divorce proceeding. The Court will divide their property and debts just as they would if the parties had been married in a ceremony. In the event that one party passes away and the other survives them, the party who survived them will be considered their legal next of kin under Colorado probate law rules, granting them full authority over their estate and assets. While some may believe that all of this is negative, it can impact your estate planning in a positive way.
If the parties were living together for many years, and then broke up, without initiating a legal divorce action, the parties might have difficulty dividing up their property. The courts generally do not get involved in the division of assets that parties did not own legally. Often times, the parties must work together amicably to divide up their belongings. This serves as a reminder of why it is so important to legally end your relationship if either party is interested in ending their relationship with the other.
Proving a Common Law Marriage for Your Colorado Divorce
Many times, parties to a common law marriage need to prove the existence of that marriage for divorce proceedings in Colorado. It is important to remember that there is a presumption under Colorado law that a marriage did exist – it is presumed if a couple co-habituates for more than one year and holds itself out to the public as being married.
Furthemore, Colorado courts have held that a cohabitation agreement can be valid and enforceable even if the parties do not intend to marry. Nol v. Nol.No. 8521 (Colo. D.Ct. November 20, 1987). A cohabitation agreement may be in oral or written from, and may be amended in writing or orally. However, it must be entered into voluntarily with an intent to be bound. The court should also consider the circumstances surrounding the making of the cohabitation agreement. These include consideration of full financial disclosure, expressions of intent to separate in the future, and participation in financial decisions.
Other factors which may be relevant include whether or not the parties share a bank account, file joint tax returns, use insurance cards which state they are married, and whether or not the parties ever identified themselves as married to others.
A court can also consider the financial circumstances of the parties, and specifically whether one party made major sacrifices or contributions to the relationship. The court will then determine whether one party has been unjustly enriched as a result of the other party’s acts.
Common Law Divorce – Rights and Obligations
While common law marriages have ended up with the same rights and responsibilities as ceremoniable marriages since 2014, it’s important we discuss what it still means when you dissolve a marriage by mutual consent with some major drawbacks (as compared with a more traditional divorce). Listed below are some of the responsibilities parties have in common law divorce.
In addition to the Property Settlement Agreement (PSA), a spouse that is seeking an annulment or divorce must provide their spouse a Joint Statement of Adjustments. The JSA requires all debts and assets incurred during the marriage to be listed out with their values assigned to them using identifiable valuation methods. The spouse seeking the divorce or annulment must provide this to the other spouse and they have forty-five (45) days to object to the proposed values. If they object, then the court requires a listing of independent experts to value these assets (the court has discretion as to whether it listens to your expert or not). However, if there is no objection after forty-five (45) days, a realigning divorce decree is issued. If one spouse objects to the values assigned to the assets or debts provided in the Joint Statement of Adjustment, then this form makes the divorce proceeding much longer and costly. Just like PSA, the Joint Statement of Adjustment is a mandatory requirement.
In a common law divorce , it can be difficult to prove rights of succession to a joint property not purchased during the common law marriage. Without a property agreement or prenuptial agreement, a spouse not married to the decedent would not be entitled to the property under Colorado law (without an agreement of the rights of survivorship) under the intestacy statute.
There is no right to spousal maintenance with common law marriages; however, the court does have the discretion to provide for temporary maintenance. If the court decides to award temporary maintenance, it can order up to 40% of the obligor spouse’s income to the obligee spouse or former civil union partner.
The duty of support is imposed by law on both spouses from the beginning of a marriage to the end. This grant of support extends over interspousal relationships that are governed by C.R.S. §14-10-112(1)(a) and (11).
Unlike common law marriages in other states, Colorado common law marriage does not have a common law divorce. In the eyes of the law, partners must follow the same procedures as a civil union or traditional married couple. The same laws apply.
Similar to other states, if parties become common law married in Colorado, then they are considered married for life in the eyes of the law. Although parties can apply for a separation or end common law marriage without making a divorce allegation, if property and custody issues are disputed in the separation agreement, parties can file for a legal separation.
Common Law Marriage and Divorce – Legal Issues and Controversies
Common law marriages may create headaches when the relationship deteriorates. Although Colorado recognizes common law marriages, it also identifies unique issues that can arise due to the lack of formalities involved in such unions. When a common law couple decides to separate, the ensuing divorce can potentially raise new complexities. While the potential is good that a divorce can be resolved without litigation, an extensive and costly process through the courts might be in a party’s best interests. If a common law couple is unable to reach amicable decisions over important issues like division of property and assets, or debt responsibilities, litigation becomes inevitable.
Some common legal issues that may arise in the course of a common law divorce include interpretation of the couple’s agreement regarding spousal support, division of property and assets, and debt responsibility. The existence of a common law marriage is not enough in itself to satisfy the requirements for a divorce from a common law marriage. If a court does not find grounds for divorce, it does not enter a divorce decree and the marriage remains valid. Questions may arise over the characterization of property and assets as separate or marital. Disputes may also arise between the parties if one spouse claims to have maintained ownership over certain property or assets and the other disagrees.
Factors such as the duration of marriage, pre-wedding assets, and any premarital agreements are used by the court to determine the division of property between both parties in a common law divorce. In Colorado, all property acquired during a marriage is considered marital property. After the assessment of the value of all marital property, a division of 50/50 will be used for the distribution between spouses. However, in some instances, such as where one party contributed more to the acquisition of marital property, the court might divide the property in unequal proportions.
The court can order spousal support for one of the spouses, based on given circumstances. Spousal maintenance may be temporary or permanent, and is determined after taking into consideration factors including the needs of the recipient spouse, the gains and future income of each spouse, their respective health status, the roles of either spouse in the marriage, and the amount of property each spouse will receive in the property division process. Stringent requirements apply to the process of filing a motion requesting modification or termination of spousal support. The judge on such cases must be convinced that a substantial change in circumstances has occurred for the request to be granted.
Another highly litigious aspect of common law divorce is establishment of parentage. Duties of child custody and support are determined according to the needs of the child, and an agreement may be reached between both parents throughout the pendency of the case. If the parents reach an agreement that categorically ends litigation over parental responsibilities, child support, visitation, and custody, the court shall incorporate the agreement in its decree.
Common Law Divorce in Colorado – Getting a Lawyer
Many people who are affected by Common Law Marriage and Divorce in Colorado have numerous questions related to their unique situation. Perhaps you have heard that Colorado is one of the few states that recognizes common law marriage , or work/living in a jurisdiction that does not recognize common law marriages; and now your situation has changed and you need to seek out legal guidance. Confiding in a lawyer who has experience with common law marriage issues can ease the stress of the divorce process and make it less of a burden. The right attorney will explain how the rules of divorce actually apply to you and help you begin unraveling the emotions, financials and logistics of your divorce.