Do You Have a Common Law Marriage in Colorado?

Colorado is one of a very few remaining states which still recognizes common law marriages. And that has resulted in confusion, and litigation, as people often think that simply living together for a certain period of time means they are common law married.

That is not true. A Colorado common law marriage is much more than just living together in a romantic relationship - it requires the intent to actually enter into a marital relationship, along with evidence of that intent.

Traditional Common Law Factors Outdated

In 2021, the Colorado Supreme Court issued a decision which upended 33 years of precedent by creating a more holistic approach to common law marriage. Previously, the courts primarily looked at objective factors, such as living together, the wife taking the husband’s name, and especially holding yourselves out as married (e.g. filing joint tax returns).

But in In re: Marriage of Hogsett, 2021 CO 1, the court noted that those factors had become outdated, as more people cohabitate without intending to be married, while others are married but in long-distance relationships. More couples have separate finances. More couples are having children out of wedlock, fewer wifes aer taking their husband’s names. In short, the traditional 1970s indicators which distinguished a marriage from merely being boyfriends or girlfriends no longer accurately reflect the complex reality of relationships in the 2020s.

New Standard for Common Law Marriage

The new test is much more flexible: “a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.”

What changed is that a couple no longer has to cohabitate, or even to hold themselves out as married to family, friends or the government. Instead, they have to intend to be married, and that intent can be inferred from their conduct. So a court will look at a variety of factors to prove intent, such as:

• Cohabitation
• Reputation as married
• Joint finances
• Symbols of commitment, such as rings or a ceremony
• Their beliefs on the institution of marriage

As numerous cases over the years show, Colorado courts have had trouble defining a common law marriage, even under the more rigid 1970s test. Now, with the new standard, things have gotten even messier as judges are expected to delve into the minds of the couple, and could find a marriage exists based purely on their “intent”, even without any strong objective evidence.

Common Law Marriage in the Military

Colorado has a large military population, so military family law issues are important to tens of thousands of our residents. Fortunately, the feds have a hands-off approach - if the common law marriage states recognize a valid marriage, per the DOD Financial Management Regulation the military will also recognize it: “Common-law marriages entered into in those states are considered valid if they are contracted in accordance with state law.”

Maybe Common Law Marriage Itself is Outdated?

Instead of trying to update the common law marriage factors, maybe it’s time to revisit why the concept even exists?

Common law marriage is a throwback to the horse & buggy days, when people living in remote locations could not readily obtain a marriage license, nor find a judge or minister to get married. Rather than their children facing the then-existing legal discrimination and social stigma of being illegitimate, common law marriage offered a couple the chance to “go legit” and claim a marriage without ever obtaining a marriage license or solemnizing their marriage.

We’ve come a long way since then, and in a concurring opinion to Hogsett, one of Colorado’s Supreme Court justices sharply questioned why the state still has common law marriage, arguing the concept is obsolete: “The historic conditions that once justified the need for the doctrine are no longer present, its application is often unpredictable and inconsistent, and it ties parties and courts up in needlessly costly litigation. It is my view that Colorado should join the overwhelming majority of states and abolish it.”

In 2019, South Carolina abolished common law marriage, leaving just Colorado and six other states in the tiny minority. Will Colorado be the next to go?