Common Law Marriage Dissolution

Experienced Colorado Springs Divorce Attorneys

At Drexler Law, we have extensive experience in handling dissolutions of common law marriages in Colorado Springs and the nearby areas. We start by finding out whether a relationship should be considered a common law marriage and then move to the division of marital assets, property, and debt, as well as custody or parenting orders for any child born or adopted during the common law relationship. We also have experience in handling cases involving same-sex marriages, civil unions, and same-sex parenting or custody matters.

What Is a Common Law Marriage?

Common law marriages are marriages without a formal wedding ceremony but where a couple holds themselves out as being married.

Does Colorado Recognize Common Law Marriage?

The Supreme Court of Colorado has held that, "A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship."

In essence this means that a couple must:

• Cohabitate
• Conduct a marriage-like relationship, most importantly
• Hold themselves out as a married couple (e.g. "This is my wife" or "This is my husband")

Although common law marriage requires cohabitation (living together), Colorado does not specify a particular period of time that a couple must cohabitate. A common misconception is that Colorado requires a five- or seven-year period of cohabitation, which is not required.

Does My Relationship Qualify as a Common Law Marriage?

It’s one thing to allege that the parties have held themselves out as a married couple; however, it’s a much different matter to coordinate witnesses to corroborate the allegations. Contact Drexler Law for advice on whether a common law marriage exists between you and your putative spouse. A putative spouse is a person who has cohabited with another to whom he is not legally married, in the good faith belief that he was married to that person. Our analysis is heavily fact-intensive and often requires demonstrating multiple factors. Although the law does not specify that one factor is more relevant than any other factor, the practical reality is that the courts are heavily focused on the parties’ affirmative representations in holding themselves out as a married couple to the public and third parties. For example, a couple can affirmatively hold themselves out as married by filing a joint tax return as a married couple; however, the fact of filing, by itself, is not conclusive evidence of a common law marriage.

Showing Evidence of Marriage

In Colorado, both parties must hold themselves out as being married. It is not enough if just one of the parties tells others that the couple is married. The relationship involves more than just dating, having sexual relations, sleeping over at another's residence, cohabiting, having children together, financially supporting the other, or third parties simply assuming that a marriage between the couple exists.

It is important to examine the understanding among neighbors, family members, and acquaintances with whom the parties regularly associate that the parties hold themselves out as husband and wife with the shared intent that they are, in fact, husband and wife.

In one Colorado case, a husband had obtained a ski pass through the wife's employer as a spousal benefit package. However, the court ruled that the ski pass, even together with the wife being covered under the husband's employer-provided health insurance plan, was not conclusive proof of a common law marriage.

Extensive case law in Colorado deals with how a couple holds themselves out as being married. One case involved a couple signing as husband and wife on an affidavit for medical care or treatment. Other cases involved the couple filing joint taxes, where they claim marital deductions. In some cases, the parties have incurred joint debt when purchasing a vehicle and jointly applying for the loan.

Partition Cases

Even where a common law marriage is not found to exist, the parties are still able to seek a judicial order to allocate jointly held property.

Drexler Law is uniquely situated to address not only domestic relations actions but also civil litigation matters. In fact, one of the firm’s partners has more than a decade of experience handling civil litigation matters. In essence, a civil action is a claim for money damages or injunctive relief to resolve a dispute between a plaintiff and defendant. So, where a couple is not married, a civil action can be initiated to partition jointly held property between or among the parties to the case.

Currently, Colorado law does not recognize a common law marriage between same-sex couples. Still, matters of property division between couples can be addressed in the context of a civil partition action.

Couples who purchase a home together and then break up or end their relationship can seek a court order allocating the home between the parties. The Court may ultimately force the sale of the home if neither party is able to financially afford the home on his or her own. However, a court cannot order a third-party creditor (i.e. the mortgage holder or loan servicer) to relieve a party from the contractual obligations of the mortgage or similar home loan and title documentation.

Common Law Divorce?

Just because you may be common law married doesn't mean you can common law divorce. The importance of a common law marriage is that the marriage can be created but not dissolved even if both parties agree to simply separate.

Bottom line: There is no such thing as a common law divorce. Imagine a scenario where you find yourself in a common law marriage, and then wish to separate for the same reasons any other married couple would separate. The catch is that you still need to follow the formal procedures for a dissolution of marriage or legal separation.

It's an odd concept to be sure: you need to formally dissolve an informal marriage. Legally, the existence of a common law marriage that is not formally dissolved would render a subsequent marriage (formal or informal) void. This fact may have serious ramifications not only in a family law context but also in probate and estate matters. For instance, if your subsequent marriage is void, your second spouse may not be entitled to the inheritance of survivor benefits available to surviving spouses.

The above scenario highlights one of just many, many impacts that can be avoided by retaining a qualified and experienced law firm that will take the time to learn your full background, your goals and the legal pathways to accomplish your goals, even when the situation presents difficult scenarios.