Ask five different people what common law marriage is and how long it takes to be in one, and you will get six different answers. This is especially true if you ask people from around the country. All over the U.S., each state has different time frames and requirements before a couple can be considered married by “common law.” And in actuality, a majority of states do not even recognize common law marriages, including our surrounding neighboring states of Arizona, Nebraska, and New Mexico.
However, even states that do not recognize common law marriages, will recognize a common law marriage of a couple that moved to that state from a state that did recognize common law marriages. Meaning, if you and your “spouse” believe you have a common law marriage while living in Colorado, and then move to Nebraska (a state that does not recognize common law marriages), Nebraska will recognizethe common law marriage from Colorado (i.e. you are common law married in Nebraska – a state that does not itself recognize common law marriages).
But let’s get back to our lovely state of Colorado, and its laws. Put simply, Colorado does recognize common law marriages. The “simple” requirements of a common law marriage are fourfold: (1) holding yourselves out as husband and wife, (2) consenting/agreeing to the marriage, (3) living together, and (4) having a reputation of being married in the community. You will note that there is no time requirement. For example, if you and your potential spouse are living together and you agree on Monday morning to be married, and tell everyone Monday afternoon you are husband and wife, you could be considered by a court to be married on Monday!
This may sound a bit nuts, but potentially, it can happen. To be real though, a common law marriage is found when the court takes a look at the situation as a whole. For example, the courts will usually look to whether the couple file taxes together or whether they put each other on the others’ work insurance. Those are two big factors that stand out to a judge that a couple considered themselves married.
One question that gets asked again and again to lawyers: if I have a common law marriage, do I need to go to court to get a divorce? This is a tough question to answer because it always depends upon the situation. From the courts’ perspective, a divorce is about dividing up the marital assets. Therefore, if it would not be in your best interest to “divide” up the assets of the marriage, you should probably not get a divorce through the court. On the other hand, if it is in your financial interest to divide up the marital assets, then you should get a divorce through the courts.
An interesting issue presents itself in the case of a divorce of a common law marriage. One half of the couple can claim the couple was never even married by common law. At this point, the court can hold a hearing on whether the two were actually married under the common law statute of Colorado (or elsewhere if it applied) or not, and then move forward on the divorce action, or not. If the court moved forward with a divorce, the action would be no different than if the couple were legally married.
Two final thoughts on common law marriages: one, Colorado does not recognize common law marriages of minors, and two, the issue of same-sex marriages is legally complicated. You should always consult a Colorado family law attorney to understand your legally binding actions. At Peter Loyd Weber & Associates, we have experience dealing with all family law issues, including common law marriages. Give us a call today for a free phone consultation on your matter at: 720-863-7755.