Note – in 2021, the Colorado Supreme Court issued a decision in Hogsett,1In re: Marriage of Hogsett, 2021 CO 1. which set forth a new framework for common law marriage. While cohabitation was a required element of common law marriage under the old standard, now it is just one of the many factors a court may consider in determining whether a couple intended to be married. See our blog post for more information about this important decision.
Are we married, or just living together? Because Colorado is one of a very few states which still has common law marriage, there is a misconception that if a couple lives together in a long-term relationship, at some stage they become married.
What Is A Common Law Marriage?
In short, it is a different way of getting married. In the more typical ceremonial marriage, the couple will obtain a marriage license from the county clerk, have a ceremony officiated over by a minister, friend, or judge (although an officiant is not actually required – the couple can solemnize their own marriage), and then register the marriage with the county.
A ceremonial marriage is easy, simple, and clear-cut – no room for ambiguity as to whether or not you are married. A common law marriage is just as legal, but more subjective. The elements are:
- Cohabitation (i.e. living together)
- Mutual agreement to be married
- Evidence of the agreement
Looks simple enough on paper, but in reality, a common law marriage is more complicated to prove, especially if the two would-be spouses do not agree on whether they are actually married – which is often the case in a divorce.
Does Living Together Create A Common Law Marriage
As indicated above, living together is an essential element of a common law marriage. But it’s not enough by itself – if cohabitation alone could create a common law marriage, there would be an awful lot of couples who live together troubled to learn that breaking up isn’t so simple, and actually requires a divorce.
If a couple chooses to live together, they can do so safely without somehow ending up married – and that is true no matter how long they live together. Ten years, twenty years – the duration of cohabitation is irrelevant, as long as there is no intent to be married. A girlfriend does not become a common law wife simply because you cohabitate.
Am I Common Law Married If I Call Myself Married?
Perhaps. If it’s clear you are only joking, and do not mean to be married when referring to your boyfriend as “my husband”, then those statements will not prove a common law marriage. But are you willing to take the risk that someone who hears you say “my husband” thinks you’re serious, or that your significant other receiving a card saying “to my wife” is supposed to know it’s only a term of endearment, not to be taken literally? I wouldn’t!
Use common sense – proving a common law marriage is not a black & white issue, but numerous shades of gray, and referring to yourself as married, even if you think it’s joking, is one piece of evidence which establishes a marriage. In short, don’t joke about something as serious as marriage! If you do, you may find that your significant other believes himself to be a common law spouse.
Likewise, avoid the “trappings” of marriage. Don’t have a ceremony where you exchange rings – even if you call the rings “promise rings,” or something other than a wedding band, such a ceremony is yet another piece of evidence. If you want friends and family to attend a ceremony (and bring gifts!) have a real wedding, not a ceremony where you proclaim your love for one-another.
If you want to be treated as married, or call yourselves married, be prepared for the risk that a judge may well take you at your word instead of believing you didn’t really mean it. Do don’t call yourself married, anywhere, unless you mean it (Facebook, anniversary, will, etc).
How Can I Avoid A Common Law Marriage Claim?
In short, the best advice on how to avoid a common law marriage is this: Don’t game the system. If you try to take advantage of the system and claim benefits only offered to married couples, you’re playing with fire.
If your company offers provides health insurance to spouses, don’t sign up unless you’re married. You’re either committing fraud by falsely claiming marriage, or you’re actually married.
Don’t file joint taxes unless you really mean to be married – not only are tax returns an important piece of evidence to prove or disprove a marriage, but do you really want to have the IRS investigate you for tax fraud. NOTE – the flip side of this is also true – if you truly have a common marriage, and both of you intend to be married, then you should file jointly, not only for the tax breaks, but also to help prove a marriage exists, should that later become necessary.
Be careful of commingling funds. This is another gray area – it’s okay to own a house together, or to have a joint account, But the more you combine your finances, the more a court may think it looks like you have a marriage. Keep your own separate accounts, and if you must, have one joint account where you pool funds to pay joint bills.
It’s Okay To Live Together
Back to the original question. It is okay to cohabitate, and without more, simply living together will not create a common law marriage. But since cohabitation is one element of a common law marriage in Colorado, if you live together, and call yourselves married, and file taxes jointly or sign up for company spouse benefits, then you’ve gone a long ways towards establishing a marriage exists.
It all starts with living together. If it ends there, you will not have a marriage, but you should confer with a lawyer before you go further and find that you’ve entered into a marriage without really thinking it through.
For a much more detailed discussion of what it takes for a common law marriage in Colorado, see the Colorado Common Law Marriage article in the Colorado Family Law Guide.
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