Vail Daily column: Common law marriage in Colorado
Some folks say, “I do.”
But in 15 states — sweet home, Colorado, among them — those who say “I do” and those who don’t are the same in the smiling eyes of the law.
Before we get on to what are some interesting differences between states, let’s pick a couple of nits. At the outset, what, pray tell, is common law? If you’ve read this column before, maybe you’ve stumbled over the particular cobbles of this definition. If not, well, here it is again. Common law means law defined by judges rather than law based on legislative action. It is the law emerging from the primordial ooze of previous court decisions rather than emerging from statutes enacted by a legislative body.
Statutory vs. Common Law
Those who say “I do” are I do-ing based on statutory law. Those who don’t, but still are married are founding their relationship upon the common recognition of marriage — at least in some states.
Regular, “I’m-gettin’-married-in-the-mornin’, so get-me-to-the-church-on-time” marriage is referred to as “ceremonial” marriage because there is … um … a ceremony. Its opposite is common law marriage.
That settled, let’s take a peek at the states that recognize the particular form of wedded bliss that involves neither church nor vows but relies, instead, solely on commitment. Then, after such voyeurism, we will look at Colorado.
Ohio, Idaho, Georgia, Oklahoma and Pennsylvania permit common law marriage but only if entered into before 1981, 1996, 1997, 1998 and 2005 respectively. In Kansas, you can get common law hitched but only if both partners are at least 18 years old. In Texas, partners must satisfy a two-prong test and show that they are legally entitled to marry and have registered the marriage at the county courthouse. And in Utah, last home of the plural marriage, one — or really two — can get common law married by administrative order. In New Hampshire, common law marriages are recognized only after the death of one partner.
Only in Alabama; Washington, D.C.; Iowa; Montana; Rhode Island; South Carolina; and Colorado can a couple get common law married just ’cause.
Well not exactly. The devil is always in the details.
It is generally accepted in our state that to be common law married, the happy couple must meet three criteria: One, they must cohabitate; two, they must mutually agree that they are married; and three, they must openly hold themselves out to the world as married.
Those of you who are presently either quivering with excitement or sweating bullets should note that although living together is required, no specific duration is necessary. A couple could conceivably live together for a veritable eternity and, unless they hold themselves out as wed, a common law marriage in this state will not be created. On the flip side, if romantic roomies hold themselves out as married and intend to be married, they may potentially be considered married after a very short time.
Something else to note is that the agreement to be married need not be an express or written agreement. If fact, it is uncommon for a couple to have anything but stars in their eyes that unequivocally evidences that they agreed to be married. As you might imagine, when they are untying that particular unwritten knot, there can be complications. Unless both parties agree that they had a common law marriage in Colorado, lawyers will inevitably be involved to help untangle the mess.
A few things courts consider in deciding if a common law marriage did or did not take place include: One, whether third parties will attest that the couple was married; two, whether joint returns are filed; three, listing the other party as a spouse on forms; four, whether they have mixed their financial lives; five, whether they now share a last name; six, whether they had a wedding party or the like or wear wedding rings. None of these things, however, is a necessary requirement. Essentially, each of them just helps a judge figure the darn thing out.
If a couple is common law married, as easy as it was to get married, it is not so much if they decide to go their separate ways. However a couple was married, via the formal shebang or with just a wink and a nod, the couple must be formally divorced. This is especially important when there is property involved or kids are involved.
It is critical to establish whether a common law marriage exists if one in the couple dies, particularly if the party dies without a will. The rights of a surviving spouse are dramatically different than those a girl- or boyfriend.
I do. Or don’t. As far as the law is concerned, pretty much the same in Colorado.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, firstname.lastname@example.org and email@example.com.