Petrelli Previtera, LLC is a family law firm with offices in Denver Colorado. We help our clients with divorce, child custody, child support, and complex property division matters. We’re committed to treating our clients like family and helping them navigate the legal waters in this difficult and emotional time.
We get many questions related to common law marriage and divorce in Denver, Colorado. In this post, we’ll explain common-law marriage and what it means to you in the event of a divorce.
WHAT IS COMMON LAW MARRIAGE?
Common law marriage has existed for over 150 years in the United States. Common law marriage has its roots in Medieval times. Here, due to the lack of roads and access to transportation, justices of the peace and clerks of the law could not travel to marry couples. While marriage is a legal union between two people, a common law marriage is a marriage without a formal ceremony and marriage license. As simple as this sounds, common-law marriage is a bit more complicated.
WHAT DOES COMMON LAW MARRIAGE ENTAIL?
Common law marriage is characterized by four common requirements:
- You must be living together.
- You both must be legally allowed to be married, or have the “capacity to marry.” This means both parties must be 18 years old, be of sound mind, and not be legally married to someone else.
- Both parties must intend to get married.
- Both parties must represent themselves to others as a married couple. Some signs of this are having the same last name, having joint bank accounts and/or loans, filing joint tax returns, and referring to each other as “husband,” “wife,” or “spouse.”
Not many states recognize common law marriage, and some have banned common law marriage that used to recognize them.
COMMON LAW MARRIAGE IN COLORADO
Colorado is one of the few states that does recognize common law marriages. Here, a common law marriage is recognized if both parties are over 18, live as a married couple, and assume a marital relationship.
Simply living together does not constitute a marriage, even if it’s for decades. The amount of time a couple is together is inconsequential in the eyes of the state of Colorado. You must agree to be married and hold yourself as married to be common law, while living together.
One main problem of common law marriage is proving that you are married and the burden of proof falls on the couple. A court would need to conduct a hearing to determine where the court will decide based on the facts presented and the credibility of the evidence. Judges scrutinize these cases closely, making sure common law marriages are not self-serving, meaning the couple only claims common law marriage when it is convenient for them and claim single otherwise.
If you are claiming common law marriage, you’d better have documents and a lot of family and friends to back up your claim. This is to prevent fraud. There are many reasons one may claim to be in a common-law marriage, primarily for economic advantages. These can include health insurance, joint gym membership, educational purposes, social security benefits, and life insurance purposes.
Reasons to Prove or Disprove Common Law Marriage
There are several motivations for a couple to either establish or reject a common law marriage.
Spousal Support: If a couple separates and the court determines they were indeed married under common law, the partner earning less income may be entitled to spousal support. This might motivate one partner to prove the existence of a common-law marriage. Conversely, the higher-earning partner might wish to avoid this financial obligation of spousal support, thereby contesting the common law marriage status.
Inheritance: In the event of one partner’s death, the definition of the relationship could impact inheritance rights. Family members might contest the relationship status to protect their inheritance, while a long-term partner could aim to prove common law marriage status to secure their share of the estate.
Marital Assets: The definition of a common law marriage could significantly alter the division of assets upon separation. Assets attained during the relationship, including businesses, retirement accounts, and physical properties, may be considered marital property and thus subject to division. This might either encourage or discourage partners from proving their common-law marriage, depending on individual circumstances and interests.
WHY COMMON LAW MARRIAGES ARE NOW BANNED BY MOST STATES
On the flip side, some couples were classified as being common law married who did not want to be, and then had to go through a legal divorce process when they separated. Furthermore, the law was antiquated in modern society. Transportation to a courthouse is generally not a problem for the majority of the population. Common law was just one more thing the often overburdened courts had to process. Since people are perfectly capable of making a marriage decision, it seems a waste of precious tax-payer dollars to process.
COMMON LAW AND DIVORCE
Once a common law marriage is established, it’s just as binding as a legal marriage. You must be granted a legal divorce and go through legal divorce proceedings just like any other married couple. In the event of separation of a couple in a common law marriage, they will have to handle issues of alimony, child custody and support; if a partner dies and a common law marriage hasn’t been established previously, you’ll have to prove one existed. This applies only to those few states that recognize common-law marriage.
Petrelli Previtera, LLC, a top-notch family law firm serving Jefferson and Douglas Counties, takes the time to answer all of your questions and address any concerns you may have. We offer divorce attorney consultations for you to meet us, get to know us (and us, you), ask any questions you may have, and explain our divorce legal services. We are experts in common law marriage and divorce and are here to help with any issues you have.
With over 30 years of experience, Petrelli Previtera, LLC in Colorado are the family law attorneys who have helped many families through divorce and child custody issues efficiently and as quickly as possible so that you can close the book on that chapter of your life. We will work diligently in representing you and your desires either in mitigation or in court. We offer the best family law solutions for your needs. Contact us today for a confidential family law consultation!