What Are the Similarities & Differences Between Civil Unions & Common Law Marriages?

By: Stephen J. Plog

A traditional marriage is not the only type of legal union recognized by the courts in Colorado. There are two other possibilities: a civil union and a common law marriage. Learning the similarities and differences between these two types of unions may be important for legal reasons if you and your spouse are considering alternatives to traditional marriage.

Civil Union vs. Common Law Marriage

A civil union is a legal status that is similar to marriage. Civil unions were originally created to offer the same legal protections that married couples have to same-sex couples. In 2015, when the United States Supreme Court legalized same-sex marriages, many couples’ civil unions were converted to marriages. However, some couples chose to retain their civil union statuses.

A common law marriage, on the other hand, is a marriage achieved by an agreement to be married, living together as spouses, and announcing themselves to friends, family and the public as being married, without ever obtaining a marriage license or going before an officiant. Generally speaking, to validate a common law marriage, a couple must be 18 or older, of sound mind, not already married to other people, intend to be married, and present themselves as married to others.

To determine whether a traditional legal marriage, civil union or common law marriage is right for you and your spouse, ask which legal rights are most important to you both. A civil union does not come with all the same rights as marriage, though most. A common law marriage does have the same protections but may not be recognized in all states, in all settings. Family law attorneys primarily deal with dissolving legal relationships. If you are in a marriage or civil union and are considering dissolving either, you may also wish to discuss your options with a family law attorney. A family law attorney can also assist you with a pre-marital agreement in either relationship scenario, as Colorado statute does allow marital agreements in civil unions.

Does the State of Colorado Recognize Civil Unions?

Only four states in the US currently permit couples to attain civil union status: Colorado, Hawaii, Illinois and New Jersey. With a civil union, a couple can enjoy many of the same protections as marriage, including:

• Making health care decisions on behalf of your spouse
• Parental rights over a shared child
• Estate planning benefits
• Employment benefits
• Health insurance benefits
• Property ownership and right of survivorship
• The right to request alimony after separation
• Spousal privileges in court
• Tax considerations

The Colorado Civil Union Act authorizes two unmarried adults, regardless of sex or gender, to enter into a civil union. Joining a civil union in Colorado requires filing an application to a county clerk to obtain a civil union license. Colorado law also affords parties to a civil union the benefit of all statutes related to divorce and legal separation. As such, the procedure for dissolving a civil union is essentially identical to that in a divorce.

Does the State of Colorado Recognize Common Law Marriages?

Yes, Colorado is a common law marriage state. Colorado is one of only eight states that still recognize common law marriages (plus the District of Columbia): Colorado, Iowa, Kansas, Montana, South Carolina, Texas, Utah and Rhode Island. Five other states also recognize common law marriages within time limitations; in these states, a common law marriage will only be recognized if created before a certain date. In New Hampshire, common law marriages are recognized for inheritance purposes only.

For Colorado to recognize a common law marriage, a couple must mutually consent or agree to be husband and wife, then follow it up with an open assumption of a marital relationship. The couple must cohabitate as spouses, mutually agree to be married and show evidence of their mutual agreement. If all three of these elements are met, the couple will be in a common law marriage in the eyes of Colorado law. In a recent Colorado Supreme Court decision, common law marriage was affirmatively made applicable to same-sex couples.

Do You Need a Divorce (Dissolution) Proceeding to End a Civil Union or Common Law Marriage?

Yes, you will need to go through the same legal procedures as a typical divorce to dissolve a civil union or common law marriage in Colorado. Both of these unions are recognized as legally valid; thus, it takes an official divorce proceeding to dissolve these unions. The issues in your case will be the same as in a divorce, including division of property, division of debt, spousal support, and child matters (if there are children). For more information about dissolving civil unions and common law marriages in Colorado, as well as for questions about your substantive rights and legal advice in a divorce, consult with a family law attorney in Denver.