Common Law Marriage in Colorado
Common law marriage is a concept that has sometimes been misunderstood or misapplied, leading to confusion about marital status and rights. As of September 1, 2003, Colorado no longer allows for new common law marriages, but because the law was not made retroactive, those who were already married by common law prior to that date still have recognition under Colorado law as being married. A common law marriage in Colorado contains several requirements . The parties must be free to marry, they must cohabitate, and they must mutually agree to be married. There is a required intent of the mind; meaning that the couple intends to be married, and does not want to be just living together. There is no specific length of time for which the parties must cohabitate; it can be five years, five months, or even five days, and still be considered a legal common law marriage.
Proving Common Law Marriage
To bring a valid common law marriage claim in Colorado, the party seeking the determination has the burden to prove the following two elements by a preponderance of the evidence: Of these two elements, it is the second that is typically the most indeterminate. To establish the element of general reputation, some indicia of being held out in the community as married is almost always required. Examples include: To establish the element of cohabitation, the parties usually must prove that they have lived together, in the same residence, for some period of time. While this element may be satisfied if the parties have actually lived together a short time, whether a certain length of time is required remains an open question in Colorado. In Colorado, a common law marriage can only be terminated through a Declaration of Invalidity (i.e., divorce), and not through a Declaration of Invalid Marriage. Also, property acquired during the effective date of a common law marriage may only be divided after a Declaration of Invalidity has been issued.
Filing for Divorce in a Common Law Marriage
If you are in a common law marriage in Colorado, are considering divorce, and are separating, the first step is to file an action for dissolution of marriage. When you go to file your dissolution of marriage, or divorce, you must be sure to identify that you have been married at least thrity-six (36) months, as this will likely impact your property distribution, alimony, and child support related issues. Your spouse will receive a copy of the action to dissolve the marriage, and then will have to file a response with the court in a timely manner. As with any dissolution of marriage, there are important steps that need to be filed and followed, including temporary orders and permanent orders if there are children involved.
Property Division, Alimony, and Related Concerns
If a couple has been living together in Colorado as common law spouses for at least a year, the courts will apply the same factors and procedures to the division of property and assets when they divorce as they would for a couple that was legally married. All marital property acquired during the union is available for equitable division.
The courts first differentiate between marital property versus non-marital property. Non-marital property includes assets acquired before the marriage or after separation. If either spouse is able to prove that a property should be non-marital property, it will usually not be included in the division of assets.
For couples who own property together, in a common law marriage as well as a traditional marriage, this means all property is subject to equitable distribution, which does not have to be equal. A judge will decide how the marital property should be split based on spousal contribution , acquisition of debt, custody of children, and any other relevant factors.
Alimony in a common law marriage is referred to as "maintenance" by Colorado state law. The judge will consider all sources of income, necessary expenses, and the standard of living for the spouses when considering how to grant maintenance payments. Colorado law provides for the method of calculation through the use of a formula based on the combined income of the spouses and the number of months the maintenance will be paid.
The judge may also consider spousal contributions to the acquisition of shared property when awarding maintenance payments. Maintenance payments continue until the spouse receiving payment remarries or has a new relationship that determines the payments should cease, or the judge deems the payments no longer necessary.
Child Custody and Support in a Common Law Marriage
When individuals enter into a common law marriage, many of the issues that arise in traditional marriages also come into play, such as child custody and child support. The legal standard for child custody in Colorado is the same for parties to common law marriages as it is for parties to ceremonial marriages. Colorado Revised Statute § 14-10-124 governs the legal standard for child custody awards in Colorado. In making an award of parental responsibilities, the statute states that the court shall consider the basic needs of the children, but their best interests must be the primary concern. Again, this applies to parties to common law marriages and ceremonial marriages. The same is true for child support awards in Colorado. Colorado Revised Statute § 14-10-115 sets forth the legal standard for determining child support awards in Colorado. The statute provides for presumptive child support orders based on the number of children and the combined adjusted gross income of the parties. Because the presumptive child support orders are just that – presumptions – either party can attempt to overcome those presumptions by showing a judge that the presumptively appropriate award of child support does not adequately provide for the needs of the child, or may be more than the parent paying support can afford to pay. Again, this is the same whether the parties are married in a religious or ceremonial ceremony, or married under the common law requirements of Colorado.
Legal Help
While the potential complexities surrounding a divorce from a common law marriage in Colorado may seem overwhelming, the support of legal professionals and the wealth of resources available are invaluable assets during this challenging time. In addition to seeking the professional guidance of a family law attorney, there are numerous legal assistance options for those who find themselves struggling to navigate the legalities of a common law marriage divorce.
Legal aid services offer an affordable means of legal advice and representation for low-income individuals, particularly when it comes to simpler legal issues like divorce. Additionally, law school clinics across Colorado may provide limited legal services on a pro bono basis for common law marriage divorce, and will direct individuals to other local resources and services that may be of assistance. Given the unique nature of common law marriage divorces under Colorado law, it is recommended to pursue legal services rather from a divorce attorney who specializes in these specific cases; while a law school clinical student may be able to provide a basic level of service, they may not have access to the same level of training , education and resources as a full-time practicing attorney.
A divorce from a common law marriage can be exceptionally stressful, so adding to your network of support during this time can be one of your strongest tools. Organizations such as the Colorado Parent Coalition or the Rocky Mountain Victim Law Center provide resources and counseling options to help individuals dealing with any issues associated with divorce. For those going through a common law marriage divorce especially, grieving the loss of an established relationship is a natural part of the process, and counseling can be an effective means of making it through this trying time.
The process of legally ending a common law marriage is not always a straightforward procedure, and the difference between ending your common law marriage in a way that supports your rights and financial interests and one that could lead to costly errors is simply a matter of having the right support. By getting a good grasp of the resources available to you as you prepare to go through a common law marriage divorce, you can ensure that you are following the right process and make this difficult transition as seamless as possible.