Couple signing an affidavit of common law marriage at hospital.

Yet again, contentious litigation over common-law marriage has reared its ugly head, this time over the effect of a couple signing an affidavit of common law marriage.

Disputes are inevitable when a couple’s marital status is not black-and-white but requires a holistic analysis of contradictory evidence. Our Common Law Marriage article in the Colorado Family Law Guide is ever-expanding, thanks to new cases in which judges are forced to address the nuances of this odd institution, which is recognized in only a tiny handful of states, including Colorado.

Churchill’s famous quote, “A riddle wrapped in a mystery inside an enigma”, while about Russia, could easily apply to common law marriage. Over the years, I’ve seen similar sets of facts result in a judicial finding of marriage or no marriage, based on the judge’s inclinations rather than on any objectively measurable standard. And the latest case from the Colorado Court of Appeals merely adds to the murkiness surrounding what constitutes a common law marriage.

Years ago, I had heard of a Denver case in which the parties had executed an affidavit of common-law marriage, swearing that they were married so one of them could be added to the other’s company-sponsored health insurance. The case, which was only at the trial level so there is no appellate record, resulted in the judge finding no common-law marriage, saying something along the lines of “The fact that a couple may have committed insurance fraud does not make them married.”

And I had a similar case some time back in which the parties signed an affidavit of common-law marriage early in their relationship, then underwent a ceremonial marriage a few years later. So, while they were undeniably married, a longer marriage would cost the husband more because of the division of his pension and the payment of spousal maintenance.

The husband initially claimed that the affidavit meant nothing and the parties were only married from the date of their later ceremonial marriage. But unfortunately for him, he was a police officer with something to lose if he claimed in court that he had defrauded his department by falsely stating he was married on an earlier date. So ultimately, the husband decided it was safer for him to pay the price of a longer marriage than risk prosecution or termination of his employment for fraud.

Now, we have a case from the Colorado Court of Appeals considering the implications of signing an affidavit of common law marriage to obtain health benefits. But this time, the losing party appealed, so we have a reported decision that is binding legal authority instead of anecdote.

Trial Court – Signing an Affidavit of Common Law Marriage Not Conclusive

In Hitchcock, a couple had lived together for more than five years, and then executed a common-law marriage affidavit swearing that they had been common-law married for the duration. The would-be wife argued that the affidavit should be dispositive, while the man argued that they never intended to be married and had only executed the affidavit to obtain health benefits.

After conducting an evidentiary hearing, the trial court sided with the man, finding that the couple was not married and that they had executed the affidavit solely to enable the woman’s son to obtain coverage benefits under the man’s health insurance. The family law judge found that the lack of a reputation for being married and the lack of joint financial accounts were more persuasive evidence of the issue of common law marriage than the affidavit itself.

The woman appealed, and the Colorado Court of Appeals upheld the trial court’s finding that the parties were not common law married. In so doing, it rejected the woman’s position that the affidavit established a common-law marriage as a matter of law and that the trial court should not have considered any other evidence.

Should Estoppel Prevent Claiming Benefits of Marriage Without the Consequences?

The woman advocated for the proposition that the man shouldn’t be allowed to reap the benefits of claiming a common-law marriage (extending health benefits to her son, which is really more of a benefit to her than to him) without facing the consequences of marriage. This argument against hypocrisy has an obvious appeal, but she apparently didn’t make this estoppel argument at the trial court level. That means the woman waived that particular argument on appeal, which is a pity, as it would have been interesting to have a full appellate analysis rather than a passing mention in footnote 2.

The estoppel issue, whether the would-be husband should be allowed to benefit from potential fraud, was significant in the concurring opinion discussed below.

Common Law Marriage Depends Upon the Totality of Circumstances

The court first analyzed Colorado’s relatively recent body of law, particularly the intent-to-marry framework set forth in Hogsett, which we discussed in a post on common-law marriage five years ago. Moreover, in the Yudkin case, the Colorado Supreme Court held that courts cannot merely consider the parties’ conduct but must also look to the intent behind their actions (see the blog post discussion).

Those cases especially stand for the proposition that “the existence of a common law marriage depends on the totality of the circumstances, no single factor is dispositive.” Hitchcock, ¶ 11.

This is not to say that an affidavit of common law marriage is irrelevant. It is but one piece of evidence of the parties’ intent – likely an important one, but not the sole deciding factor:

“we must agree with the trial court that the affidavit alone couldn’t establish the existence of a common law marriage because even though it evinces the parties’ agreement that they are married, there still must have been subsequent conduct consistent with that agreement to marry. Thus, faithfully applying Hogsett, we must reject Hitchcock’s suggestion that the affidavit itself — which was executed more than five years after the marriage was represented to have begun — definitively constituted, as a matter of law, both the agreement and the conduct manifesting that mutual agreement.”
Hitchcock, ¶ 15.

Express Agreement for Common Law Marriage Still Requires Conduct Supporting Marriage

The Court went further, and held that even an express agreement that parties are married still requires conduct supporting the existence of a marriage:

“we don’t agree with Hitchcock’s interpretation of that statement as a holding that an express agreement alone is sufficient to establish a common law marriage. Instead, we understand that statement to mean that conduct can demonstrate an implied agreement to be married when there is no express agreement. But still, a mutual agreement to enter into a marital relationship, whether express or implied, is only one element; the common law marriage inquiry still requires subsequent conduct manifesting that mutual agreement.”
Hitchcock, ¶ 16.

Affidavit and books on a table.

Unfortunately for the would-be wife, the signed affidavit was pretty much the only piece of evidence supporting a marriage. While they were once in a romantic relationship, they had become platonic roommates, as supported by the weight of other evidence (including no joint tax returns):

“Here, the trial court gave weight to the affidavit, which the court recognized “clearly states that the parties were married at common law.” But in accordance with the requirement that there must be subsequent conduct manifesting the parties’ mutual agreement, the court also weighed the numerous other factors bearing on the existence of a common law marriage and determined that those factors weighed against the existence of a common law marriage.”
Hitchcock, ¶ 20.

But ultimately, the trial court concluded that the intent of the affidavit was transactional – to obtain health benefits – rather than to create a genuine marriage.

Concurrence – Recipe for Fraud?

Judge Schutz (former El Paso County District Court Judge) wrote a powerful concurring opinion in the result that the parties had no common law marriage. His opinion includes a copy of the signed, sworn, and notarized affidavit signed by the parties. And in black & white, they aver that they are common-law spouses and state, “we hold ourselves out to the community as husband and wife, consent to the marriage, cohabit, and have a reputation in the community as being husband and wife.”

Judge Schutz zeroes in on the apparently fraudulent nature of their affidavit:

“By all accounts, Lundin and Hitchcock made this solemn representation to obtain a substantial financial benefit — insurance coverage for Hitchcock’s son — that they were not entitled to unless they were married.”
Hitchcock, ¶ 32.

Judge Schutz believes that the majority opinion, while correctly decided under the law, nonetheless glosses over this fraud:

“this case tolerates a situation in which both parties achieved a financial benefit by making a sworn representation that at least Lundin knew to be false, because — according to his testimony —he did not intend to be married. The majority excuses what it characterizes as potentially fraudulent conduct on the grounds that ‘even if fraud were involved in signing the document, that conduct would be only one consideration for the court.’ To support that conclusion, the majority again relies on Hogsett’s statement that the parties’ stated intention in the affidavit is not controlling, but rather is just one factor among many that the court must consider when determining whether the parties intended to be married. And indeed, Hogsett, says, ‘a mutual agreement to marry does not alone suffice; there must be some evidence of subsequent conduct manifesting that agreement.’ But is the result in this case one that Hogsett actually contemplated? Or a result that the law should tolerate? I’m not so sure.”
Hitchcock, ¶¶ 33-34 (Cleaned Up).

Judge Schutz highlights the problem with both sides of the issue – the courts either condone fraud by allowing parties to benefit from an express acknowledgment of being common law married when they didn’t really mean it, or they create a potential injustice by treating a sworn statement as conclusive proof of marriage when the parties themselves may have never intended to be married.

So while he concurs that the would-be wife waived the fraud/estoppel argument by not raising it at the trial court level (the “party presentation principle”), he points out that the courts need to address this inventivizing of fraud.

Conclusion

This case has echoes of the pre-Hogsett cases, in which the parties’ tax returns were virtually dispositive of whether they had a common-law marriage. If they filed jointly, they were very likely married, and if they filed separately, they were very likely single. While tax returns are still an important piece of evidence (among the most important), they are not dispositive. And Hitchcock instructs that an affidavit of common law marriage is similarly just one piece of evidence, and is not conclusive.

Leading Colorado Common Law Marriage Law Firm

Staff Paralegal Attorney Firm Group Shot Portrait

U.S. News & World Report calls Graham.Law one of the Best Law Firms in America. Our managing partner and multiple attorneys are recognized by Colorado Super Lawyers and Best Lawyers. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to simple child support modifications.

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 reduced-rate consult, or click on:

Colorado Family Law. Period.