Common Law Marriage & Divorce

Common law marriage originated in medieval Europe to address the dilemma faced by couples who wished to marry, but who lived in remote settlements without ready access to public or religious officials who could perform ceremonial weddings. Rather than having to wait months or years to marry, common law marriage allowed for those couples to wed simply by the declaration of themselves as husband and wife and the commencement of “married life.” For similar reasons and purposes, common law marriage continued to be an accepted alternative to ceremonial marriage in the colonies of the new world.

Currently, common law marriages can legally be entered into in Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah, Texas and the District of Columbia. New Hampshire recognizes common law marriages entered into in New Hampshire as valid for probate purposes only. Additionally, some states will recognize common law marriages entered into in that state before a certain date. These include Georgia (if created before January 1, 1997), Idaho (if created before January 1, 1996), Ohio (if created before October 10, 1991), and Pennsylvania (if created before January 1, 2005).

While only 9 states and the District of Columbia permit parties to establish a valid common law marriage, all states will recognize (afford full faith and credit to) a valid common law marriage from another state. Thus, for example, if you and your spouse entered into a common law marriage in Colorado and subsequently move to Wyoming, or Illinois, or California or any of the other jurisdictions that do not allow for the creation of common law marriage, you remain married.

Legally is there a difference between a common law marriage and a ceremonial marriage?

Once a common law marriage has been established (and establishing a common law marriage in the eyes of the court is the key here), there is no legal difference between a common law marriage and a ceremonial marriage. All of the rights and responsibilities of spouses who participated in a ceremonial marriage are available to spouses in a common law marriage. The policy behind common law marriage operates to protect the interests of parties who have acted in good faith as husband and wife.

What do courts look for when determining whether a common law marriage exists in Colorado?

The Colorado courts look for evidence of a mutual understanding by the parties that their relationship is that of husband and wife. If one party denies the existence of a common law marriage, the courts will look at the parties’ past conduct. Conduct which the Colorado courts have considered to evince a common law marriage includes but is not limited to the following:

  • Open co-habitation
  • a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife
  • Joint credit cards or loans
  • Joint bank accounts
  • The purchase and joint ownership of property
  • The use of the man’s surname by the woman
  • The use of the man’s surname by children born to the relationship
  • The filing of joint tax returns

However, it is important to remember that any form of evidence that manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding could be inferred by a court.

Why would parties disagree about whether or not they are common law married?

Sometimes parties disagree about whether a common law marriage was established because they do not understand how a common law marriage is created. Other times they disagree because married spouses enjoy considerably greater rights upon the dissolution of their marriage than do unmarried parties whose relationship is ending. Married parties who are divorcing can request a court enter orders regarding spousal maintenance (support) as well as divide marital property and debts.

If there is a common law marriage is there also a common law divorce?

No. There is no such thing as a common law divorce. If you were common law married, you must get a legal divorce. Until a court enters a Decree of Dissolution of Marriage, you remain married. The dissolution process for people who were married by common law is identical to that of people who were married by ceremony with the exception that if the existence of the common law marriage is in dispute, that issue must first be decided by the court.