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What is a Putative Spouse?

The traditional, ceremonial marriage works for most, our legal system recognizes that a couple who did not enter into a ceremonial marriage may still need legal protections after a long-term relationship. Some states, such as California, have developed concepts such as palimony, under which an unmarried party in a relationship may be entitled to support under a contract theory (“I gave up everything to stay with him because he promised to support me”).

Arguably a common law marriage falls into this category – it’s treated legally as marriage for all purposes, because the couple is married, despite never having a ceremonial marriage, marriage license, etc.

And in Colorado, the putative spouse doctrine in another way to protect a person who was not legally a 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 treated as “married” by the family law court 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

No Putative Marriage ClaimNo Putative Marriage Claim

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 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.

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