What Colorado Considers in Determining Whether your Relationship Qualifies as a Common-Law Marriage

The Basics of Common-Law Marriage

Common-law marriage is well-established in Colorado, having been recognized in the state since at least 1907.[1]  For a common law marriage to be valid in Colorado, there must be: 1) a mutual consent or agreement of the parties to be husband and wife; and 2) a mutual and open assumption and acknowledgment of a marital relationship.[2]    Importantly, the agreement and acknowledgement do not have to be explicit.  Instead, they can be (and often are) inferred from the available evidence.[3]

Level of Evidence Required

An important consideration is the level of proof required to show that a common-law marriage exists.  Interestingly, the level of proof required is different depending on whether one is trying to prove a marriage, or a remarriage.[4] Specifically, in Colorado, proof of a common law marriage must be by convincing and positive evidence.[5]  However, evidence of common-law remarriage requires a lower burden and “may be less than the positive and convincing proof necessary to establish a common law marriage.”[6]

Factors Considered by the Courts

The courts have provided several examples of evidence from which the mutual consent and assumption of a marital relationship may be inferred, and include:

Cohabitation and Reputation.  Cohabitation and reputation, though not explicitly required for a finding of a common-law marriage, are virtually so considering the case law.[7]  However, “as a matter of law . . . the existence of cohabitation in and of itself in [sic] not tantamount to ‘remarriage’ for purposes of [Colorado Law].”[8]  In other words, there must be more than mere cohabitation.

Additionally, while reputation has been variously defined, one of the more complete explanations is that it involves “the understanding among the neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife . . ..”[9]

In addition to cohabitation and reputation, some concrete examples provided by the Colorado courts as evidence to prove a common-law marriage include:

  • maintenance of joint banking accounts;
  • maintenance of joint credit accounts;
  • purchase and joint ownership of property;
  • the use of the man’s surname by the woman;
  • the use of the man’s surname by children born to the parties; and
  • the filing of joint tax returns.[10]

Anything Goes

Importantly though, the courts are clear in holding that these examples are not all-inclusive.  Instead, the evidence can be anything that shows an intention by the parties that their relationship is that of a husband and wife and is something from which the existence of their mutual understanding and openness can be inferred.[11]

If you are wondering about common-law marriage (which could potentially affect spousal maintenance), give me a call.  I’d welcome the opportunity to discuss your case with you.

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[1] Estate of Klipfel v. Klipfel, 92 P. 26, 27-28 (Colo. 1907).  The majority of the current case law on this issue still refers to the original line of seminal cases, ranging from 1897 to 1987.

[2] People v. Lucero, 747 P.2d 660, 663 (Colo. 1987).

[3] Id. at 664; see also Smith v. People, 170 P. 959, 960 (Colo. 1918).

[4] See In re Estate of Peterson, 365 P.2d 254, 255 (Colo. 1961); Ward v. Terriere, 386 P.2d 352, 355 (Colo. 1963).

[5] In re Estate of Peterson, 365 P.2d at 255.

[6] Ward, 386 P.2d at 355; see also In re Estate of Peterson, 365 P.2d at 256 (accord).

[7] See Lucero, 747 P.2d at 665 (“The two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife.”); see also Smith, 170 P. at 960 (“Cohabitation as husband and wife is a manifestation of the parties having consented to contract such relations inter se. It is holding forth to the world by the manner of daily life, by conduct, demeanor, and habits, that the man and woman have agreed to take each other in marriage and to stand in the mutual relation of husband and wife.”) (internal citations and quotations omitted).

[8] In re Marriage of Dwyer, 825 P.2d 1018, 1020 (Colo. App. 1991).

[9] Lucero, 747 P.2d at 665 (quoting Taylor v. Taylor, 50 P. 1049 (1897)); see also Peery v. Peery,150 P. 329, 331 (Colo. App. 1915) (“It is the general impression or belief created in the minds of the people from those things which constitutes the general reputation, which may be shown in evidence as tending to raise the presumption of marriage or the contrary.”) (internal quotations and citations omitted).

[10] See e.g., Lucero, 747 P.2d at 665.

[11] See id. (holding that “there is no single form that any such evidence must take. Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred.”).


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