Glasses and cash on top of a tax return.

Update – In January 2021 the Colorado Supreme Court reversed the Court of Appeals, as one of three common law marriage decisions issued the same day. See our blog post for more details, but in Yudkin,1In re: Estate of Yudkin, 2021 CO 2. 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 Hogsett2In re: Marriage of Hogsett, 2021 CO 1. 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 tax returns were 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,3In re: Estate of Yudkin, 2019 COA 25. 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 file joint tax returns, which was the “most convincing” evidence of the fact that they were not married. The court of appeals rejected this argument, 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.4In re: Estate of Yudkin, 2019 COA 25, ¶ 11.

Tax returns should not be dismissed lightly – in most cases, they remain an important piece of evidence, as there is typically not such convincing evidence that the court finds the elements of a common law marriage were met without considering documents. But for those rare cases where a court can make such a finding, no further evidence need be considered, or apparently even should be considered.

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.

Award-Winning Colorado Common Law Marriage Attorneys

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