Common Law Marriage in Colorado
Colorado is one of a small number of states that still recognizes common law marriage—a legally valid marriage that is formed without a ceremony, marriage license, or formal solemnization. A common law marriage carries the same legal weight as a ceremonial marriage, with all of the same rights and obligations regarding property, support, inheritance, and parental responsibilities. At Neiley Law, we represent clients in the establishment, proof, and dispute of common law marriages throughout Carbondale and Rifle.
Common law marriage frequently becomes a contested issue when a long-term relationship ends or when one partner dies. Whether you are seeking to establish a common law marriage to claim spousal rights, or seeking to defend against a claim that a common law marriage existed, the outcome can have significant financial and personal consequences.
Elements of a Colorado Common Law Marriage
Colorado courts have long required two essential elements for a common law marriage: (1) the parties' mutual agreement or consent to be married, and (2) their mutual and open assumption of a marital relationship. In 2021, the Colorado Supreme Court issued three decisions in Hogsett v. Neale, In re Marriage of LaFleur, and In re Estate of Yudkin that updated and modernized the common law marriage analysis. These decisions reaffirmed the basic elements while emphasizing that courts should consider the totality of the circumstances and should not rely on outdated assumptions about what marriage looks like.
Under the modernized standard, courts consider a wide range of evidence to determine whether the parties intended to be married and held themselves out as married. No single factor is dispositive, and courts must weigh all relevant evidence in context.
Evidence Used to Prove Common Law Marriage
Evidence commonly considered in establishing a common law marriage includes cohabitation in a shared residence, the use of a common surname, the filing of joint tax returns, joint bank accounts and shared financial obligations, designation of one another as spouse on insurance policies, retirement accounts, and emergency contact forms, references to one another as husband, wife, or spouse in social and professional settings, the wearing of wedding rings, joint ownership of property, the celebration of anniversaries, and statements made to family, friends, employers, and government agencies.
The Hogsett decisions made clear that courts should not require all of these traditional indicia and should not penalize parties for choices that reflect modern relationship norms—such as keeping separate finances or retaining a maiden name. The focus remains on the parties' mutual intent and the way they presented their relationship to the world.
Same-Sex Common Law Marriage
Following the U.S. Supreme Court's decision in Obergefell v. Hodges (2015), which established a constitutional right to marriage equality, Colorado law recognizes that same-sex couples can establish a common law marriage. The Hogsett decision involved a same-sex couple and explicitly applied the common law marriage doctrine to their relationship. Importantly, Colorado courts may recognize a same-sex common law marriage that was formed before Obergefell, when same-sex couples did not have the legal right to marry, if the parties agreed to be married and held themselves out as married.
The retroactive recognition of pre-Obergefell common law marriages is significant because it can affect property rights, inheritance, and the duration of the marriage for purposes of spousal support and Social Security benefits. Same-sex couples who lived as spouses before legalization should consult with experienced family law counsel about their rights.
Why Common Law Marriage Matters
Common law marriage is not just a label—it has real legal consequences. A common law spouse is entitled to all the rights and protections of marriage, including:
- Equitable distribution of marital property under Colorado divorce law
- Spousal maintenance (alimony) where appropriate under Colorado guidelines
- Inheritance rights as a surviving spouse, including elective share rights
- Eligibility for Social Security spousal and survivor benefits
- Health insurance coverage and other employer-provided spousal benefits
- Rights and responsibilities regarding shared children
- The right to make medical decisions for an incapacitated spouse
Conversely, an unmarried partner has none of these rights as a matter of law. The difference between being married and not being married can determine whether a long-term partner walks away from a relationship with a fair share of accumulated wealth or with nothing at all.
Disputing a Common Law Marriage Claim
Common law marriage claims can also be defended against. If one party claims that a common law marriage existed but the other party disagrees, the claiming party bears the burden of proving the marriage by a preponderance of the evidence. Defenses against a common law marriage claim typically focus on the absence of mutual agreement, the lack of public holding-out as spouses, and contradictory statements or behavior—such as filing tax returns as single, identifying oneself as unmarried on legal documents, or maintaining clearly separate financial lives.
We represent clients on both sides of these disputes, helping establish the existence of a marriage where appropriate and defending against unsupported claims where they are not. The factual analysis is intensive, and the outcome often depends on careful presentation of documentary and testimonial evidence.
Ending a Common Law Marriage
A common law marriage can only be terminated through the same legal process as a ceremonial marriage—a formal divorce proceeding. There is no such thing as a "common law divorce." If you are in a common law marriage and want to end it, you must file a petition for dissolution of marriage in district court and proceed through the regular divorce process, including property division, spousal maintenance determinations, and—if there are children—parental responsibility orders.
The fact that you must prove the marriage existed before you can divorce can complicate things. If your spouse contests the existence of the marriage, the court will hold a hearing to determine whether a valid common law marriage was formed before proceeding with the divorce. This preliminary determination can be one of the most important issues in the case.
Estate and Inheritance Issues
Common law marriage is frequently contested in probate proceedings after the death of one partner. A surviving common law spouse may seek to claim a share of the estate, contest a will, or claim Social Security benefits—all of which depend on establishing the marriage. Courts in these cases face the additional challenge that one of the parties is deceased and unable to testify about their intentions.
We assist surviving partners in establishing common law marriages for inheritance purposes and represent estates and beneficiaries who challenge such claims. These cases require careful gathering of evidence and skilled litigation in probate court.
Why Choose Neiley Law
Common law marriage cases are fact-intensive, emotionally charged, and legally nuanced. The 2021 Hogsett decisions modernized the analysis but also created new questions about how courts should weigh various forms of evidence. Our boutique practice provides the personal attention and legal experience needed to handle these complex matters effectively.
Contact Our Common Law Marriage Attorneys
If you have questions about whether you are in a common law marriage, or need to establish or contest a common law marriage in a divorce or probate proceeding, contact Neiley Law for a consultation at our Carbondale or Rifle office. Visit our Family Law page to learn more about our practice.