What is a Putative Spouse?
Colorado law recognizes the putative spouse doctrine, under which
A person who has cohabited with another to whom he or she is not legally married in the good faith belief that he or she was married to that person is a putative spouse until knowledge of the fact that he or she is not legally married terminates his or her status and prevents acquisition of further rights.C.R.S. 14-2-111
In short, a putative marriage is where a spouse entered into a marriage in the good faith belief that the marriage was valid but due to some legal impediment, the marriage was invalid. For a more detailed discussion of putative marriage in Colorado, see our Putative Spouse article in the Colorado Family Law Guide.
What is Common Law Marriage?
Colorado is one of a few states remaining which recognizes common law marriages, or a legal marriage without going through a ceremony. A common law marriage requires that the spouses cohabitate, hold themselves out as married, and actually intend to be married. For a comprehensive primer on common law marriages, see our Colorado Common Law Marriage article in the Colorado Family Law Guide.
Putative Spouse vs Common Law Spouse
At first glance, a putative marriage may seem similar to a common law marriage – in both cases, a couple is arguably “married” despite not having a ceremonial marriage. But that would be incorrect – a “putative marriage” is not a real marriage, it’s just a legal doctrine which provides a putative spouse benefits of a marriage when the relationship ends. And the Colorado Court of Appeals recently held that the two really have nothing to do with one-another.
In D.P.G.,1In re: Parental Responsibilities of D.P.G., 2020 COA 115. the court considered what it called a “novel” issue: “May a party attain putative spouse status after a court determines that no common law marriage existed?”
A couple separated after a 10-year relationship, and the woman tried unsuccessfully to assert that the parties had a common law marriage. She then attempted to assert she was a putative spouse as a fallback, and that claim too was rejected by the magistrate. The district court upheld that determination, holding that the putative marriage statute:
“was not designed to provide a party that has received an adverse ruling on the existence of a common law marriage, to have a second bite of the proverbial apple.”D.P.G.2In re: Parental Responsibilities of D.P.G., 2020 COA 115, ¶ 9.
The woman appealed, and the Court of Appeals upheld the denial of putative marriage status:
“We cannot agree with Ms. Tatarcuk that section 14-2-111 allows a person to attain putative spouse status when she fails to establish the existence of a common law marriage. Rather, the putative spouse statute seeks to afford spousal rights to an individual who held a good faith belief that he or she was validly married to another but, in fact, was not married due to some impediment that prevented the existence of a legal marriage.”D.P.G.3In re: Parental Responsibilities of D.P.G., 2020 COA 115, ¶ 22 (Emphasis added).
Putative Marriage Requires Legal Impediment
The emphasized language was critical to rejection of the putative marriage claim, and highlights the difference between a common law marriage vs a putative marriage. In a putative marriage, the parties have actually “married,” but a legal impediment (often bigamy, it appears) unknown to the putative spouse prevents the marriage from being valid. A belief that a common law marriage exists which is rejected by the court is not an actual impediment to marriage – it’s merely a failure to prove the elements of a common law marriage.
The takeaway? Allege common law marriage, if you meet the requirements, or alternatively consider whether you could meet the requirements to be a putative spouse (which would be rare indeed). But don’t try for both – a putative spouse claim is not a fallback in case the common law marriage claim fails. If you’re just living together, and not found to be in a common law marriage, you can’t try to claim to be a putative spouse.
Note that it’s probably possible, in theory, to have a court find no common law marriage due to a legal impediment (e.g. the putative spouse was common law “married” to someone who was still married to someone else), but we’re talking about a fairly convoluted set of facts involving two concepts that are already fairly uncommon in Colorado – putative marriage and common law marriage.