How do I divorce my common-law spouse?
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. Prior to 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 supercede 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.“