Home  Coloradoan Archives  Sr. Voice Archives  FAQs  Links 
Law Offices of Ronald W. Rutz
Coloradoan Archives

September 5, 2000: Common-law Marriage; Lawsuit Etiquette

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 actions to show the existence of the relationship, especially if there is later a denial by one of the two people involved. The burden of proof that there is a common-law marriage is the responsibility of 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.

Unlike many states which have statutory requirements to establish common-law marriages, there is no requirement in Colorado such as to actually cohabiting, presence of consummation, or even the need to sign something like an affidavit, 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," giving the factual situation before it.

Thus, some of the more common things (besides the ones already mentioned) 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 the other's children of a former marriage tell their friends, or how such a child addresses you in public, 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, if two people complete and sign a rental lease in a manner that suggests a relationship other than "roomies", 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 true 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. And remember, there is no such thing as a common- law divorce.

Q: This cartoon character I follow in the newspaper keeps suing everyone, including his own Mother. I didn't think you could sue parents in general or normally even a spouse.

A: You can haul anyone into court from dear old Mom to your own spouse. Some types of suits, however, can not be brought, such as against governmental entities protected under the concept of sovereign immunity (usually where physical injuries have been caused by some type of governmental involvement) or if limited by statute.

Of course your legal reason for suing can not be "frivolous" and before action is begun you need to be certain you can meet your burden of proof. But keep in mind the possible non-legal ramifications, such as even if you win, being left out of the Will or being divorced. So if you want Mom to continue to do your laundry, entertain such thoughts only when you are scanning the cartoons.

Home  Coloradoan Archives  Sr. Voice Archives  FAQs  Links