Colorado is one of several states that recognize common law marriages. If you are common law married, you must go through a court process (just like any other marriage) to dissolve the marriage (i.e., get a divorce.) In Colorado, a common law marriage is where the parties have an express agreement stating that they each understand they are married, consent to the marriage and hold themselves out as married.

The Colorado Supreme Court, through three cases, recently revisited the test for proving a common law marriage that the Court articulated over three decades ago in People v. Lucero, 747 P.2d 660 (Colo. 1987). See Hogsett v. Neale, 478 P.3d 713 (Colo. 2021); In re Estate of Yudkin, 478 P.3d 732 (Colo. 2021); and In re Marriage of LaFleur & Pyfer, 479 P.3d 869 (Colo. 2021).

The Colorado Supreme Court found “that many of the traditional indicia of marriage identified in Lucero are no longer exclusive to marital relationships.” Hogsett at 715. The Colorado Supreme Court refined the test fromLucero and held that,

a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation.

Id. (original emphasis).

The Court has held that “[i]n assessing whether a common law marriage has been established, courts should accord weight to evidence reflecting a couple’s express agreement to marry.” Id.  

“In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct.” Id.

When examining the parties’ conduct, the Court determined that “the factors identified in Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances.” Id.

In Hogsett, the Court found, that although the parties “had joint ownership of property, had joint banking and credit card accounts, and had worked with a financial advisor as a couple to manage and preserve their assets” the moving party did not meet her burden in proving a common law marriage existed. Hogsett at 717. The Court reasoned that although one party believed the couple was common law marriage, there was credible evidence that the other party did not believe they were married. Id.

The Supreme Court clarified in Yudkin that whether a common law marriage exists depends on the totality of the circumstances, and no single factor is dispositive. See 478 P.3d 732 (Colo 2021). Based on the totality of the circumstances (the express agreement signed by both parties, both parties’ clear intent on being married) the parties’ conduct supports the claim that there is a valid marriage between the parties.

The governing case for common law marriage in Colorado is Hogsett v. Neale, 478 P. 3d 713, 723-24 (Colo. 2021).   As set forth in Hogsett, a common law marriage exists when there is first (1) a mutual agreement to enter “the legal and social institution of marriage” and then (2) subsequent conduct “manifesting that mutual agreement.” Id. ¶ 49.  (emphasis added).

Burden of Proof.  “The party alleging that a common law marriage exists has the burden to prove the required elements by a preponderance of the evidence . . . (noting that a higher burden of proof is not required, but “more than vague claims unsupported by competent evidence” must be presented).  In re Marriage of Hogsett and Neale, 480 P.3d 696, 699 (Colo. App. 2018), aff’d sub nom. Hogsett v. Neale, 478 P. 3d 713 (Colo. 2021) (internal citation omitted). 

Further, “courts must generally establish the date of common law marriage in each case.”  Robin Lutz Beattie, Chandra Zdenek, Common Law Marriage: A New Definition of an Age-Old Concept, Colo. Law., December 2021 at 18, 20 (2021) (citing In re Estate of Yudkin, 478 P.3d 732 (Colo. 2021)).

Step 1: Proving Mutual Assent to Be Married.   “The key question is whether the parties mutually intended to enter a marital relationship.” Id. Importantly, the mutual agreement must exist in the present. Crandell v. Resley, 804 P. 2d 272, 276 (Colo. App. 1990). A common law marriage is not created when the parties agree to marry in the future. Crandell v. Rasely, 804 P.2d 272, 276 (Colo. App. 1990) (citing Radovich v. Radovich, 269 P.22 (Colo. 1928)). 

The Colorado Supreme Court identified an important difference between two parties agreeing to hold themselves out to be married versus agreeing to be married.  In re Marriage of Yudkin, 478 P.3d 732, 737 (Colo. 2021). 

Step 2: Presenting Conduct Manifesting an Agreement to Be Married.  Factors in evaluating the second prong of the test, conduct manifesting a mutual agreement to marry, was laid out in People v. Lucero, and refined in Hogsett. In Lucero, the court identified certain factors that may show an intention to be married, including cohabitation, reputation in the community as spouses, the maintenance of joint banking and credit accounts, joint ownership of property, the woman’s and children’s use of the man’s surname, and the filing of joint tax returns. People v. Lucero, 747 P.2d 660, 665 (Colo. 1987). In Hogsett, the Supreme Court explained that societal norms and public attitudes towards marital relationships have significantly shifted since Lucero, and the presence or absence of such factors must be evaluated in the context of the parties’ particular circumstances. Hogsett v. Neale, 478 P.3d 713, 722 (Colo 2021). For example, it is exceedingly more common for unmarried couples to cohabitate and have children together. Id.

Courts must also “consider the parties’ sincerely held beliefs regarding the institution of marriage.” Id. at 725. Perhaps of most importance, “the significance of a given factor will depend on the individual, the relationship, and the broader circumstances, including cultural differences.” Id.  

It is important to consult with a seasoned attorney who has litigated these issues extensively in order to evaluate a common law marriage claim. Marc Patoile can be reached at 303-688-3045. He has litigated and helped clients settle Colorado common law marriage claims for over 27 years.