Q: My friend said you wrote a column on common-law marriages. Could I have a copy? We have a situation in our family where the information would be very helpful.
A: Now that the second semester of college has begun, I have had a number of requests (both from parents and co-habitators) asking about the column, so I decided to run it again.
Q: I have been living with my girlfriend for more than two years. Are we married? I have heard all kinds of opinions.
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 mutual and open assumption of the relationship. The burden of proof that there is a marriage is 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.
There is no requirement in Colorado as to actually cohabiting, being together for a certain period of time if cohabiting, consummation, or even the need to sign something like an affidavit, 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 the circumstances of the matter before the court.
Thus, some of the more common things (besides the ones already mentioned) 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 checked into a motel or how they responded to an impertinent question by a neighbor's child could be used to establish the true intent of the couple and how they held themselves out to the public.
Remember that 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.
So if you want to establish a common-law marriage, try to do everything you can to show your intent and your "holding out" to the public. 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 that there is no such thing as a common- law divorce.