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Common Law Marriage

DISCLAIMER (Yes, this dumb thing needs to be on every blog post here out. Yes, its obnoxious. I know.)

I’m an attorney. That mean’s I’m literally a law-doctor. So I, unlike many other people, can legally give legal advice. Neat. However, these posts are meant to give my dear reader a glimpse into some of the Laws and Policies found regarding divorce in the State of Colorado. But, just because you’ve read every single blog and you have a picture of my beautiful face taped to the inside of your locker does not mean that we’ve formed a legal relationship. To be clear, just by reading this you are not my client, I am not your attorney, and we have not established confidentiality. But I don’t want you to think I’m afraid of commitment – give me a call, schedule a consult, and we can totally take the plunge.

ALSO, these blog entries involve exclusively Colorado Law. If you’re reading from another state, then the laws that govern you are likely different in all kinds of major and minor ways, and you really shouldn’t depend on my analysis here. I’m not licensed in your state and I haven’t read the statutes over there. Go find an equally charming attorney in that state to become pen-pals with!


Most of the time when someone comes into my office to speak with me about family law, they have a pretty good idea of how the law works. However, the one issue that people seem to get confused about more than any other is Common Law Marriage. So today I’m going to break it down for you!

First, this may not be a surprise, but Common Law Marriage is from the pool of law known as “Common Law”. This means that it’s not in a statute anywhere. Instead the doctrine is cobbled from various legal decisions by the Appellate and Supreme Court of Colorado. The key case that outlines the legal analysis is called Lucero v. People of the State of Colorado. Interestingly enough, this is a criminal case and not a family law case, but it’s still the controlling law.

Second, everyone seems to have some time frame in their head to establish common law marriage – people always think that you have to be co-habitating for 5 years, or 7, or 10. But that’s not the case, there is no explicit time frame in the analysis.

So what IS the common law analysis? How does the judge make the determination?

The common law dictates that a judge must analyze the “totality of the circumstances” in order to determine if the parties have held each other out to the public as married, and to determine if the parties intended to be married.

Let’s break that analysis down. Firstly, the term “totality of the circumstances” simply means that there isn’t a set of factors or issues that the judge must look at, instead the judge needs to consider ALL of the circumstances surrounding the party’s relationship. More on that in a minute.

Next, whether or not the parties held each other out as married. This factor asks whether or not the parties have ever referred to each other as “husband” or “wife” in public. How they introduce their spouse to strangers, etc. This also refers to whether or not they co-habitated, and whether or not they shared in an intimate relationship. It also does matter how long they have lived together… although there’s no hard and fast time line, the longer they live together the more they are holding themselves out to be married. The Court will also look to see if parties shared bank accounts, been on the same health insurance, filed taxes together, etc. Generally, this factor is answered by asking: are these two living like roommates, or are they living like husband and wife?

The second question is whether or not the parties intended to be married. Now, the judge can’t read minds…. And typically, if we are taking this issue to court it means that one party or the other is denying ever intending to be married. We need to look into the past and try to find evidence that both parties did in fact intend to be married. A lot of the evidence in the above paragraph fits here too – if they are holding themselves out as married, they likely intended to BE married. But there are some factors here that are different, sometimes we may have love letters (or texts, emails, etc.) that are personally between the parties, and that can go a long way here.

There’s a lot to analyze here. And a lot of evidence to pull together. It’s not an easy thing to prove that a common law marriage exists, but it can be a big deal depending on the situation. If you are breaking up with your common law husband or wife and the judge doesn’t make a finding of a marriage, then there won’t be any division of assets or debts, and there won’t be any spousal maintenance. Depending on how long of a marriage you’ve had, we can be talking about a HUGE difference.

As always, if you have any questions or are looking for some advice tailored to your own case, please give me a call. I’d be happy to schedule a consult and give you my opinion and advice!

(719)621-1402 or

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Hi internet. My name is Drake Larson. I’m an attorney, but I guess you knew that. Welcome. I, like a long line of boring attorneys before me, have chosen to begin authoring my own blog. I might manage