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Common Law Marriage

Colorado is one of a handful of states which recognizes the legal concept of “common law marriage.” Unlike the traditional marriage, with the formality of a ceremony and filing of a marriage license, a common law marriage is based on the intentions and conduct of the parties. Like a traditional marriage, when it comes time to end the common law marriage, the same rights, laws, rules and procedures apply. However, with this type of marriage, there comes additional facets of the litigation, with the first step being either proving or disproving the existence of the marriage. The Denver divorce lawyers at Plog & Stein, P.C. have decades of combined experience advocating for clients in dissolution of marriage cases, including those tied into common law.

Understanding Common Law Marriage

Common law marriage is a concept often misunderstood by the general public. People often presume that just because they lived together for a long time or shared joint financial accounts that they are married. Sometimes they believe they are married because they filed taxes together, when in fact joint tax returns are just one item of potential evidence which might be used to prove a common law marriage, but does not automatically create one. In some cases people who believe they might be married are not. If there are children, they can certainly use the court to system to deal with child support and custody issues. However, property issues will be out of the divorce/family law realm, though there may be remedies available in a traditional case.

In common law divorce cases, the key question which must first be addressed is whether a marriage actually exists. Pursuant to a 1987 Appellate Court decision called People v. Lucero, common law marriage exists if the parties agreed to be married, cohabited as spouses, and held themselves out to the community at large as being married. Each of these elements to establish a common law marriage is legally significant and must be established to prove the existence of a marriage. If both parties agree they were married under common law, then the case will move forward as any divorce or legal separation matter would. However, in instances in which one party challenges the existence of a marriage, the first battle, so to speak, will generally start with one party seeking to dismiss the divorce case for lack of subject matter jurisdiction. Without a marriage there can be no divorce. Without divorce, there can be no alimony, or division of property and debt under the Uniform Dissolution of Marriage Act. A motion to dismiss the case will generally lead to an evidentiary hearing before court. At this stage, with the stakes being so high for each side, it is vital to have the experience and insights of a common-law divorce lawyer in Denver who is skilled at understanding what is needed to prove or disprove the marriage, including what evidence the court may be looking for.

Given changes to the law in 2014 regarding same-sex marriage, common law marriage can also apply to same-sex couples. The issue of whether same-sex common law marriage can be applied retroactively to dates prior to 2014 remains unsettled at the appellate court level, though case law resolution is anticipated in the near future. Keeping abreast of changes in the law is an integral part of our practice.

Experienced  Attorneys Fighting for Colorado Residents

At Plog & Stein, P.C., we understand how important it is to our clients to go through the divorce process knowing they have quality, caring representation. Let us put our negotiation and litigation skills to work for you when the time comes to deal with your divorce, custody, or child support matter. Contact us through our online contact form, or call us today at (303) 781-0322 to set up an appointment regarding your common law divorce.

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