How do I divorce my common-law spouse in Colorado?
Once a marriage has been established through common law or by obtaining and filing a marriage license and holding a ceremony, the divorce procedure is relatively the same, except for one difference.
In a divorce involving a common-law marriage, the court will have to establish that the parties are, in fact, married. When a marriage is established by obtaining and filing a license and holding a ceremony, unless one party seeks an annulment, the marriage’s existence is not an issue.
If one party in a purported common-law marriage disputes the marriage, then the court will likely require both parties to file legal arguments, and a hearing will be held.
Before the existence of a marital relationship is determined, Colorado case law has established that the court may enter temporary orders regarding:
- The payment of spousal maintenance, child support, and attorneys’ fees,
- The allocation of parental responsibilities and parenting time,
- The payment of debts and use of property, and
- Preserving the parties’ safety and property through restricting inequitable and harmful conduct.
If the court finds that the parties did not establish a legally recognized marriage, the divorce matter may be dismissed. If there are children involved, the court may retain jurisdiction to establish child support and a parenting plan. The couple will be treated as individual property owners according to established property laws.
Even if the court finds that the parties did not establish a legally recognized marriage, one party may claim that he/she is a putative spouse because he/she had good faith belief that he/she was married to that person. If the court finds that the party qualifies as a putative spouse, then he/she has the same rights as a legal spouse.
If the court finds that a legally recognized marriage was established, then the divorce will follow Colorado’s established dissolution of marriage laws and procedures and the common-law nature of the marital relationship is immaterial.
What is a common-law marriage?
Colorado law provides two ways for couples to establish a marital relationship:
- By obtaining and filing a marriage license, solemnizing the marriage before a proper authority, and following the statutory requirements,
- Establishing a common-law marriage by mutual consent and the open assumption of a marital relationship.
The common-law marital consent or agreement need not be in writing, nor is there a requirement of verbal consent or open declaration. The two factors courts consider most when reviewing a common-law marriage claim are (1) open cohabitation and (2) a general reputation in the community that the parties hold themselves out as husband and wife.
Case law indicates that open cohabitation is an essential element of a valid common-law marriage. It is considered a mutual and public acknowledgment of the marital relationship. There is no requirement for a certain duration of cohabitation to establish a common-law marriage, so contrary to popular belief, you don’t have to live with someone for seven years to establish the marriage.
The second requirement – that the parties hold themselves out in the general public as husband and wife – is equally important. Not all cohabitation relationships are considered common-law marriages.
For marriages entered into after 2006, 18 years old is the age of consent for a common-law marriage. Before 2006, in upholding a common-law marriage where one party was 15 years old, the Colorado Court of Appeals indicated that a person as young as 14 years old could consent.
Since the existence of a common-law marriage is determined by open cohabitation and general reputation, a factual hearing is typically required for resolution.
What is a putative spouse?
According to the Colorado statutes, a putative spouse is:
- Any person who has cohabited with another to whom he [or she] is not legally married,
- In the good faith belief that he [or she] was married to that person,
- Until knowledge of the fact that he [or she] is not legally married.
If the court finds that one party in a relationship qualifies as a putative spouse, then that party has the same rights as a legal spouse, including:
- The right to spousal maintenance,
- The equitable division of property acquired until that party knows that he or she is not legally married, and
- Eligibility for collecting benefits, such as Social Security or post-mortem worker’s compensation.
If there is a legal spouse and a putative spouse, or more than one putative spouse, the rights acquired by a putative spouse do not supersede a legal spouse’s rights, or any other putative spouses’ rights. The court will divide any disputed property among the parties “as appropriate in the circumstances and in the interests of justice.“