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Authored by Todd Burnham
Colorado is but one of a handful of US states that recognize Common Law Marriage – you are considered married despite not having had a ceremony or official marriage certificate. Common-law marriage is more than mere cohabitation. “A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” People v. Lucero, 747 P.2d 660, 663 (Colo.1987).
How does Common Law Marriage occur?
Sometimes people don’t get married, but intend to commit to a life-long partnership and they express this mutual intention through actions. Typically, this would involve evidence such as filing joint tax returns as a married couple, joint health insurance coverage, having the same last name, introducing the other partner as your spouse, etc. Or, sometimes you are simply dating and the other party alleges common law marriage without any basis in fact.
Parties in these situations aren’t ignorant. They are aware that common law marriage is recognized in Colorado, and they typically don’t behave in a manner reflective of common law marriage. So, what do you do when one party says they are married and the other party says they aren’t? You prepare well, you dig into their relationship, you leave no stone unturned, and you build a case, often including a parade of witnesses for each side. These cases usually come down to mistakes.
Below is an example.
Disputed Common Law Marriage
We represented a mother of two who was married to a successful businessman who had multiple contemporaneous relationships unbeknownst to our client. They had three children, all of whom had father’s last name. Father was very careful, and deceitful, in that he allowed mother to introduce him as her husband to neighbors and other community members but would later, in private, tell people that they weren’t married. This is the “parade of witnesses” characteristic of a common law marriage hearing.
We won this case because we relentlessly investigated their history. We discovered family holiday cards, sent by mother with the return address being “the Smith Family” and not “the Smith family and Ms. Jones.” That win resulted in our client receiving an order for over $500,000 in maintenance. The details matter.
What happens if you lose a Common Law Marriage hearing?
Most people erroneously believe that losing a common law marriage hearing means you are done. You’ve spent 10 years with someone you believe is your spouse; you’ve invested your life with this person only to be left with nothing. It doesn’t seem fair because it isn’t. You still have a cause of action for unjust enrichment, and other possible remedies, based on fairness. See, e.g., Salzman v. Bachrach, 996 P.2d 1263, 1265 (Colo. 2000).
The key to being successful in any case involving common law marriage allegations is… strategic planning. Every aspect, every fact, and every allegation matters. Common Law Marriage, and unjust enrichment claims to a certain extent, involve seeing the case from the 30,000 foot view as well as mastering the nuances and details. Not many law firms have the depth and sophistication that we do to see the case from the outset.