Glasses and cash on top of a tax return.

In a case announced last week, the Colorado Court of Appeals held that tax returns were simply one piece of evidence when determining whether there was a common law marriage, and should not be given greater weight than other evidence.

In Yudkin,1In re: Estate of Yudkin, 2019 COA 25. a woman claimed she was the common law wife of a deceased man, and entitled to his property under intestate succession laws.

Virtually every witness testified they understood the couple to be married, and the trial court found all of the elements of a common law marriage had been proven:

  • Agreement to be married,
  • Cohabitation (for 8 years), and
  • Reputation in community for being married.

Yet despite these findings, the court found there was no common law marriage, solely because the parties did not file joint tax returns, which was the “most convincing” evidence of the fact that they were not married. The court of appeals rejected this argument, holding that the other evidence was only necessary to establish the agreement and reputation, not if those elements were already satisfied:

“We understand Lucero to mean that if there is an agreement to be married and the two essential factors — cohabitation and a reputation in the community as husband and wife — are met, the inquiry ends there; a common law marriage has been established. When the two essential factors are not “clearly” established, a court may consider “specific behavior” of the parties, such as the filing of tax returns. But, if the essential factors are met, the inquiry ends.”

Yudkin.2In re: Estate of Yudkin, 2019 COA 25, ¶ 11.

Tax returns should not be dismissed lightly – in most cases, they remain an important piece of evidence, as there is typically not such convincing evidence that the court finds the elements of a common law marriage were met without considering documents. But for those rare cases where a court can make such a finding, no further evidence need be considered, or apparently even should be considered.

Common law marriage is a tricky subject, and Colorado is among a tiny group of states which recognizes it. For more information, see the Colorado Common Law Marriage article in the Colorado Family Law Guide for a more in-depth discussion of proving or disproving a common law marriage.

common law marriage tax returns

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