Glasses and cash on top of a tax return.

Update – In January 2021 the Colorado Supreme Court reversed the Court of Appeals common law tax filing decision, as one of three common law marriage decisions issued the same day. See our blog post for more details, but in Yudkin, the Court vacated the Court of Appeals decision, and directed the trial court to consider all facts to discern the parties’ intent, as promulgated circumstances in the Hogsett decision issued the same day (read this blog post for more details of the new common law marriage framework).

The original blog post follows…

In a case announced last week, the Colorado Court of Appeals held that an IRS common law tax filing, or its absence, was 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, a woman claimed she was the common law wife of a deceased man, and entitled to his property under intestate succession laws.

Evidence Supported Common Law Marriage

Checklist for Common Law MarriageChecklist for Common Law Marriage

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 the community for being married.

Yet despite these findings, the court found there was no common law marriage, solely because the parties did not do a common law tax filing. The absence of married, filing jointly tax returns, was the “most convincing” evidence of the fact that they were not married.

Common Law Tax Filing Just One Factor to Consider

The Court of Appeals rejected this rigid holding, 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, ¶ 11.

Tax filing status should not be dismissed lightly – in most cases, tax returns remain an important piece of evidence – after all, if a couple denies to the IRS that they are married, then it’s harder to convince a trial court there is a common law marriage. But it is also not common to have such convincing evidence that the court finds the elements of a common law marriage were met without considering common law fax filing.

But for those rare cases where there is ample other evidence proving a common law marriage, whether the couple did a common law tax filing need not be considered, or apparently should not even be considered. The IRS is important, but not all-powerful!

Common law marriage is a tricky subject, and Colorado is among a tiny (and shrinking) 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.

Does the IRS Recognize Common Law Marriage?

Marriage is defined by state law, not federal law. So if a couple has a common law marriage recognized by Colorado, then the IRS will recognize the marriage for purposes of taxes. There is no common law tax filing – the couple files a normal tax return as a married couple.

Award-Winning Colorado Common Law Marriage Attorneys

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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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