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Colorado Divorce and Common Law Marriage for Same-Sex Couples: What is the Law?

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.

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. Since the legalization of same-sex marriage, there has been discrepancy as to what the date of marriage is, because of the previous illegality, as well as the “husband/wife” language.

Same-sex couples that have been together can be considered to be common law married because Colorado is a state that recognizes common law marriage. However, it is yet to be determined whether same-sex common law marriage will be applicable prior to October 2014.

It is important to note that an unconstitutional law may be seen as void, because it was never valid to begin with. Therefore, the prohibition never existed. In multiple states, courts have found that there was a common-law, same-sex marriage that allowed for a surviving widow to seek wrongful death benefits. Further, another court held that same-sex marriage existed to preserve an individual’s right to inherit from his or her spouse. Since same sex marriage is now constitutional, it follows that common law, same-sex marriage would also be deemed constitutional.

Any couple considering divorce should become as informed and well advised as possible. Consultation with a Colorado family law attorney with knowledge and experience on these issues is a wise first step.

Please contact the domestic team at Cantafio & Song PLLC for assistance with all of your family law needs.

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