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Colorado Divorce: What is the Difference between Traditional Marriage and Common Law Marriage?

Common law marriage is not recognized in most states today, but there are a handful of states that still do. Those states are: Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah. Each of these states has their own specific regulations, and you should review the laws in your state.

In Colorado, the courts will use a variety of factors to determine whether a couple is common-law married. For Colorado to recognize that a common law marriage exists, the couple must:

  1. Cohabitate,
  2. Mutually agree to be married, and
  3. Openly hold themselves out to the public as married.

Common law marriage begins when two main elements are met—mutual public acknowledgement of a marital relationship and cohabitation. People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). Further, the couple must hold themselves out at husband and wife. “A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” Id. The couple needs to mutually agree that they are in an exclusive relationship. Additionally, the couple must mutually hold themselves out as Husband and Wife. Therefore, common law marriage is primarily about intent. It is about the intent of the couple, the objective and subjective way they are viewed, and the way they view themselves. Other factors that a court considers is how the couple’s taxes are filed, how the couple signs cards together, and whether there are joint bank accounts.

Once it is determined that a common law marriage exists, there is no difference between this and a wedding with a wedding license. The Colorado Supreme Court has ruled that discrimination against common law is unconstitutional and if you have a valid common law marriage, you should be able to enjoy all the rights and responsibilities of marriage, including insurance, pension, and inheritance. Since both types of marriage are treated the same in Colorado, if the couple is thinking about divorce, the process would be the same as that of a traditional marriage.

Any couple considering divorce should become as informed and well-advised as possible. Consultation with a family law attorney with knowledge and experience in these issues is a wise first step. Investing in professional, sound advice from the beginning of this process could preserve access to health care and save money for you in the long run.

Please contact the domestic team at Cantafio & Song PLLC for assistance with all of your family law needs. Schedule a consultation with a Colorado divorce lawyer when you call (888) 458-0991.

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