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Law Offices of Ronald W. Rutz
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November 10, 2004: Common Law Marriage

Q: I have received a good number of positive comments about the last column but have been asked repeatedly to expand on the common-law portion. Although I have written on this topic in the past, here is an updated version of one of those columns.

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. If there is a dispute, then various factors are examined to determine the nature of the relationship. The burden of proof to establish common-law marriage is upon the one asserting its existence. That could be one of the two people involved, third parties (such as personal representatives or agents), or maybe even the government, since the existence of a marriage creates an "internet" of legal relationships, rights, responsibilities, and duties.

By statute many states have requirements that need to be met to establish common-law marriages, such as actual cohabiting, the length of time living together, consummation, or even the need to sign something like an affidavit. There are no such requirements in Colorado, although all of these factors plus many others could be used to show the true intent of the couple. 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" given to any particular factor depends upon the importance that the trier of fact (judge or jury) may place on each piece of "evidence" given the factual situation presented at trial.

Besides the ones already mentioned, some of the more common factors used to establish a common-law marriage would be: having children together, use of the same name, filing joint tax returns, common accounts and ownership of assets, what each otherÕs children of a former marriage tell their friends, or how such a child addresses the non-parent in public, etc. To establish the true intent of the couple and how they hold themselves out to the public, even factors such as how two people check into a motel, if two people complete and sign a rental lease in a manner that suggests a relationship other than "roomies," or how they respond to a question by a neighborÕs precocious child could be used. We could go on and on because almost anything relevant could be used.

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 one way or the other. If the foregoing sounds like a typical wishy-washy lawyerÕs 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 true intent and be sensitive that all factors will point to the intent to be married. If you do not want to establish this relationship, be careful to always show your mutual negative intent and be aware 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, especially when that earlier "other person" is claiming an elective share of an estate, the right to pensions, law suits about support and mental abuse, etc., or child support recapture by social services. Need I say more?

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