How Do You Know If You’re Common Law Married?

Allison Sutton
By: Allison Sutton
PublishedSep 12, 2023
5 minute read

Colorado is one of the few States that recognizes common law marriage. This is convenient to Centennial Staters who’d rather just choose their partner and live their life. Some people don’t want to fuss with paperwork, a ceremony, or arranging the perfect guest list. One drawback, however, is that many cohabitating couples aren’t certain about their status. Some of them must literally break up to find out. So … how do you know if you’re common law married?

Bottom Line:

If you think breaking up is hard to do, imagine discovering that it’s actually a divorce. Whether you’re the partner pushing for marriage recognition or the one opposing it, an unfavorable decision can disrupt your plans.

What is a Common Law Marriage? 

A common-law marriage is formed when both parties mutually agree to live as a married couple.  The parties must then follow up this agreement by “holding themselves out” to their community as a married couple.

This can include:

  • one party taking the other party’s last name,
  • introducing each other as “my husband/wife/spouse,”
  • commingling finances,
  • engaging in joint estate planning,
  • filing taxes as married jointly, etc.

No licenses, ceremonies, or papers are needed to establish its validity. However, it is important to have a paper trail evidencing that a common law marriage does in fact exist.  For example, if you do not file your taxes as married jointly, a Court may not only question the validity of the common law marriage, but it could result in tax fraud implications as well.

Those in a common-law marriage enjoy the same rights and duties as individuals in a formally recognized marriage. They are entitled to the same divorce process, as well.

When Parties No Longer Agree 

A paper trail is crucial because, unfortunately, mutual agreement often flies out the window when these couples split. Typically, the partner with fewer assets will push for marriage recognition entitling them to divorce benefits like:

  • Equitable asset distribution
  • Spousal maintenance, and
  • Child support

The partner with greater assets and income will often argue against the establishment of a common-law marriage. They want to keep what they consider as theirs and not continue supporting the former partner.

Finding or Not Finding a Common Law Marriage

When two parties are in dispute over whether they had a common-law marriage, it takes a court hearing to decide. This means both sides must submit arguments and evidence backing their claims.

This is a zero-sum proposition. The court will either rule that a common law marriage existed, or it didn’t. There is no middle ground. Therefore, it’s important to know what a court will be looking for as proof of a common law marriage.

How Colorado Determines a Common Law Marriage

Two key elements are required for proving the existence of a common-law marriage. They are mutual agreement and open assumption of a marital relationship.

As set forth in Colorado Supreme Court case In Re Hogsett (2021) — indicators of these two elements include:

  • Acting as a married couple in public
  • Living together
  • Sharing a joint bank account
  • Owning property together
  • Supporting each other financially
  • Celebrating anniversaries, exchanging cards and gifts, and other symbols of commitment
  • Filing taxes jointly
  • Joint estate planning, such as wills and powers of attorney
  • Obtaining benefits, such as health insurance, together
  • Listing each other as emergency contacts
  • Listing each other as life insurance or social security insurance beneficiaries
  • Identifying as spouses on official documents
  • Sharing one partner’s last name

Additional prerequisites for any marriage also apply, such as:

  • The parties are free to marry; neither is already married.
  • Both are of legal age (18), or 16-18 with parental consent.
  • The parties must not be related to each other; for example: they cannot be first cousins.
Evidence Establishing Common Law Marriage 

The documentation needed to prove or disprove most of the above indicators should be self-explanatory.

For example, to demonstrate shared residence, mail and bills addressed to each partner should list the same address. Lease agreements, property deeds, and evidence of joint finances and property ownership are also effective. Tax returns and insurance forms can also prove or disprove mutual intent to live as married spouses.

In fact, I’ve found that tax returns are one of the most important factors to a judge. Either the couple were married and held themselves out to the IRS and the Department of Revenue as married, or they committed tax fraud. It is illegal to file taxes jointly as a married couple if you each should have filed separately, as single.
Testimony and Written Statements 

Documentation alone might not always be enough. However, without any paperwork showing an intent to live as spouses, no other evidence will suffice.

I find that in court, written statements are useless unless the same person testifies under oath and is available for cross examination.
No Time Requirement 

Many assume that if two romantic partners simply live together long enough, they are common-law married. Not so. The parties need only to have lived together long enough to demonstrate the above indicators.

Living together for any duration is insufficient without clear signs of mutual agreement to share a spousal life.

Updating Colorado’s Common Law Marriage Indicators 

Prior case law served well enough as long as most common law marriages matched traditional, husband-wife unions. However, times change. Marriage itself has also changed significantly since the landmark 1987 ruling.

By 2021, it was time for Colorado’s high court to address changing norms such as:

  • More unmarried couples living together
  • More unmarried couples having children
  • Married couples not always taking the same surname
  • The recognition of same-sex marriages,
  • More married couples opting to keep separate finances, and
  • The diversity of cultural commitment symbols
January 11, 2021: Three Landmark Rulings

Three Colorado Supreme Court rulings on the same day helped clarify what can constitute a modern common law marriage.

The cases were In re: Estate of Yudkin, In Re Hogsett (mentioned above), and In re: Marriage of LaFleur v. Pyfer. You can read more about them in our article discussing same-sex common law marriage and divorce.

These rulings established that the determination of a common-law marriage should be based on a totality of circumstances. No single factor can be decisive.

“When examining the parties’ conduct, the factors identified in State v. Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form.” — In Re Hogsett (Colo. 2021)

Courts Have Wide Discretion 

With the rulings in Yudkin, Hogsett, and LaFleur, the court emphasized that common-law claims be evaluated on a case-by-case basis. Courts must consider the unique circumstances of each couple.

All of this means that every case is unique — including yours. And Colorado courts are expected to treat them as such. This means you cannot assume a court will rule in your favor, no matter how strong your argument. You’re going to need a good lawyer.

Other Matters Concerning Common Law Marriage 

We’ve already touched on the first matter requiring the confirmation or denial of a common law marriage: Divorce.

To divorce, the parties must be currently married. One spouse often claims a common law marriage while filing for divorce. If valid, the court treats the divorce the same as if from a statutory marriage.

The other legal matters are:

  • Criminal Law: In Colorado, a person cannot be compelled to testify against their own spouse. (Colorado Revised Statutes 13-90-107 (1) (a)). There are exceptions, for example, when one spouse reports a crime committed against them by that spouse.
  • Probate Litigation: Probate law governs how an individual’s assets and possessions are distributed after their death. If a person dies without a will, their surviving spouse generally receives the majority, if not all, of the estate. Even when there is a will, the surviving spouse usually has a claim to residual property. Surviving spouses also have the ability to make demands such as an exclusion for unclaimed property and a share of support from the estate. A common-law spouse has the same rights of claim as any spouse.
The Right Attorney Makes a Huge Difference

Whether you are seeking recognition for your common law marriage or opposing such classification, it is crucial to present the strongest argument possible. Hiring a family law attorney experienced in common law marriage cases is your best option.

An experienced attorney will identify the key facts in your situation and build a compelling argument. They will assist you in preparing your case and guide you on the necessary documents to present in court. If a common law marriage is established, your attorney will ensure fair treatment throughout the process.

If the court finds no common law marriage, your attorney will provide guidance on the next steps to take.

Let Us Help You 

If your potential common-law marriage has ended, it’s important to consult with a divorce attorney who can help you understand your rights. On the other hand, if you believe you are not in a common-law marriage, our family law attorneys will diligently protect your assets. Call 303-688-0944 for your case assessment.

More Than Just Lawyers. Lawyers for Your Life.

Learn more about our law firm’s philosophy and values.