Family torn apart by divorce

Colorado is one of a shrinking minority of states which recognizes common law marriages. But going into the marriage is easier than dissolving it – there is no such thing as a common law divorce in Colorado. People may figure that they entered into a common law marriage without going through legal channels, so they can obtain a common law divorce the same way. Or, even simpler, dissolve the marriage the Islamic way, by using the Talaq, which literally means a husband can divorce by repudiating the wife, no judges or courts required. However, that’s a bit of a myth, as 19 Muslim countries have banned the practice.

“No one asserts that common law divorce exists.”

Lafleur, ¶ 74, n.1 (Samour, J. Dissenting, referring to what he calls “the fictional concept of common law divorce”).

A common law marriage divorce is the same as any other divorce, with the same process, and the same outcome as if the couple had a ceremonial marriage. Unless one of the parties disputes that there is a common law marriage at all – then before granting the divorce, the family law court must first resolve whether a marriage even exists. For a comprehensive look at common law marriage in Colorado, see our Common Law Marriage article in the Colorado Family Law Guide.

Entering into a Common Law Marriage

Contrary to popular myth, simply living with someone for a period of time does not create a common law wife or common law husband. The Colorado Supreme Court recently issued a seminal decision which revamped the state’s standard for a common law marriage, which can be summed up as follows:

“We therefore hold that 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.”

Hogsett.1In re: Marriage of Hogsett, 2021 CO 1, ¶ 49.

Whereas previously the focus was on the objective evidence of marriage (tax returns, holding themselves out as married), now the focus is on the intent of the parties, and the objective evidence is simply to prove or disprove that intent. See our blog post for a detailed look at Colorado’s new framework for common law marriage. In short, objective factors still matter, and a sampling of just a few of them include:

  • Cohabitation (i.e. living together).
  • Reputation in the community as married.
  • Joint finances, tax returns, etc.
  • Using the same surname
  • “Trappings” of marriage, such as a ceremony, anniversary, etc.

If you have any doubts as to whether your relationship is living together or a common law marriage, consult with a family law attorney before you change your Facebook status to “Married”, file joint taxes, go through a ceremony, etc. While you can end a “living together” relationship simply by breaking up, a common law marriage divorce is just a plain divorce, not some kind of simplified “common law divorce.”

No Common Law Divorce

As indicated, dissolving a common law marriage is the same as dissolving a ceremonial marriage – there is no common law divorce in Colorado. See our article on understanding the divorce process in Colorado, but in short, a common law marriage divorce is just called divorce (or dissolution of marriage), requiring a number of steps, including:

  • Filing a petition for dissolution in your county’s family law court.
  • Serving the summons on your common law spouse.
  • Attending an Initial Status Conference
  • Providing Financial Disclosures
  • Mediating
  • Signing and submitting agreements to the court (if uncontested), or litigating contested divorce issues at a final orders hearing

I have come across people who did their own “common law divorce” – they figured they entered into the marriage without a license or other approval from the state, so why should they require more than that to dissolve the common law marriage? The problem with that is that a common law marriage is legally a marriage, and unless ended with a formal dissolution of marriage proceeding, not a so-called “common law marriage divorce”, you are still married, and remarrying someone else without a decree of dissolution would be bigamy, and voids the second marriage.

Issues to Resolve in a Common Law Marriage Divorce

Common Law Divorce in Colorado?

Since there is no such thing as a common law divorce in Colorado, when dissolving a common law marriage the district court judge will address all of the same issues as in a ceremonial marriage, including:

  • Dividing the marital estate (i.e. allocating marital assets and debts)
  • Determining whether spousal support is appropriate
  • Restoring a spouse’s prior name upon request
  • Determining attorney’s fees
  • If there are children, determining parenting time & decision-making
  • If there are children, awarding child support consistent with the Colorado Child Support Guidelines.
  • Signing a decree formally dissolving the marriage.

Does Common Law Marriage Require a Divorce?

Yes. While entering into a common law marriage in Colorado can be done on your own, dissolving the marriage requires a legal divorce proceeding, just as is required for couples who had a marriage license in a ceremonial marriage.

What is a Common Law Marriage Divorce in Colorado?

A common law divorce is just a regular divorce proceeding. It does not matter to the court how the parties were married (common law or marriage license), the divorce process is the same, and requires a family law proceeding.

How to Get a Common Law Divorce in Colorado?

There is no such thing as a common law divorce in Colorado. Spouses who have a common law marriage are legally married under the law, and dissolving the marriage requires a formal dissolution of marriage proceeding in a Colorado family court.

What Happens with a Common Law Marriage Divorce in Colorado?

In any Colorado divorce, the family law court will enter a decree dissolving the marriage, and enter orders to allocate assets & debts, address whether alimony is appropriate, and if there are children, determine child custody and child support.

Award-Winning Colorado Common Law Marriage Divorce Lawyers

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U.S. News & World Report calls Graham.Law one of the Best Law Firms in America, and our managing partner is a Colorado Super Lawyer. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to basic child support modifications.

For more information about our top-rated El Paso County family law firm, contact us by filling out our contact form, calling us at (719) 630-1123 to set up a free consult, or click on:

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