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Law Offices of Ronald W. Rutz
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August 14, 2001: Common-law Marriage: A Review

Q: I have been asked to rerun a past column concerning common-law marriage, since there is such a major misunderstanding of Colorado laws (and a concern of parents of college-bound students).

A: There is common-law marriage in Colorado (but no such thing as a common-law divorce). The Colorado legal definition boils down to an issue of mutual consent to be married plus actions to show that the couple intended that the relationship represented a marriage.

The burden of proof that there is a marriage is on the one asserting its existence. That could be one of the two people involved, third parties, or maybe even the government, since the existence of a marriage creates an "internet" of legal relationships, rights, responsibilities, and duties, including such areas as inheritance, alimony, social security benefits, bigamy issues, etc.

Many states have statutory requirements to establish a common-law marriage, such as cohabiting for a certain period of time, consummation, or the need to sign something like an affidavit. There are no such requirements in Colorado, although all of these factors would be important in establishing a common-law marriage.

Often it comes down to getting out the scales of justice, piling factors (even contradictory ones) on one side or the other, and then seeing which way the scales tilt. The "weight" of any particular factor depends upon how much emphasis is given to that point in that particular court.

Thus, besides the ones already mentioned, some of the more common things used to establish a common-law marriage would be children, use of the same name, filing joint tax returns, common accounts and ownership of assets, etc. We could go on and on because almost everything relevant could be used. Even factors such as how two people check into a motel, sign a rental lease, or how the two respond to a neighbor child's question can suggest there is a relationship other than friends or roommates.

Remember, in Colorado the absence of any of these factors would not negate the existence of a common-law relationship but could be used to tilt the scales the other way. If the foregoing sounds like a typical wishy-washy lawyer's answer, it is meant to be, since the conclusion is based upon counting up the scores generated by the players.

Thus two legal residents of Colorado who live apart, were never intimate, and otherwise fail to act as a "normal" married couple could still be married if they so intend and otherwise conduct their legal lives as being married. Or if one claimed marriage and the other denied it, a common-law marriage relationship could be found to exist.

So if you want to establish a common-law marriage, try to do everything you can to show your intent and "holding yourselves out" to the public as being married. If you do not want to establish this relationship, be careful to always show your mutual negative intent and be sensitive to how others view your relationship.

Finally, to all of you baby boomers that participated in the "flower child" era, legally you could have a "significant other" or two out there that may still be part of your legal life.

Remember, there is no such thing as a common-law divorce.

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