You’re Probably Not Common Law Married

The Days of “We Filed Taxes Together So We’re Married” Are Over

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If I had a dollar for every common law marriage consultation I’ve taken, I’d have a very specific and weird amount of money. These consultations mostly go something like this:

“We weren’t officially married, but we lived together for a long time and filed joint taxes. Doesn’t that count? I get the house they bought without me on the title, but I totally paid half the mortgage—right?”

Well, no. Probably not. This sounds more like a bad relationship decision sprinkled with a little tax fraud.

Colorado is one of a handful of states that still recognize common law marriage. It’s the loose idea that you’re married, but you never actually got married, if you can show that your relationship looked like one. In fact, there’s a bill wandering through our State Legislature right now (HB 26-1218) to remind everyone that common law marriage is still very much a thing in Colorado, after it accidentally nearly got repealed last year.

But claiming you’re married without marrying is damn near impossible these days.

Before law school, I thought common law marriage happened if you lived with someone for more than 9 months. (That would maybe explain my relationship history in my twenties.) Now, after years of watching these cases play out in court, I’m convinced that, absent a damning line of concrete evidence that both people were emphatically thinking (not just proclaiming) “Wifey” or “My husband” on the regular, there ain’t no such thing as a common law marriage.

1. What the law actually says.

A trifecta of Colorado Supreme Court cases in 2021, In re Marriage of Hogsett and Neale, In re Estate of Yudkin, and In re Marriage of LaFleur and Pyfer, rewrote the common law marriage landscape. Read together, they say something like this:

“Everyone in Colorado can walk down to their town hall and get married if they want to. Plenty of people choose not to. They live together for decades, have children together, share finances, and never intend to be married. Given how wildly marriage looks different across traditions, cultures, and relationships, courts can no longer assume that any particular behavior means a couple considered themselves married.”

That is not exactly what they said, because no lawyer writes like that, perhaps except me in this newsletter. But it’s close enough. These cases riled up feathers, including Justice Hart who in Hogsett and Neale added in a special concurrence1 about common law marriage:

“It is my view that Colorado should join the overwhelming majority of states and abolish it.”

So, let’s go back to a common Google search phrase, like: “Am I common law married in Colorado.” The reality is that if you want to claim you are common law married to your partner, you will have to show that you both sincerely held beliefs regarding the institution of marriage and mutually agreed to enter a marital relationship.

And who, pray tell, would go to great lengths to do, or think all of that, and then not walk down to the town hall to seal the deal? With literally nothing stopping anyone these days, who are the Colorado courts to tell you if you’re married or not?

Who?!

2. I’ve litigated plenty of this.

I had a client once who spent years going back and forth about whether she even wanted to marry her partner. He apparently took very detailed notes, documenting the days of their lives in minute detail. He even screenshotted their entire relationship text history. None of this handiwork helped him in court. Neither did the witness he brought, who, under my cross-examination, became so agitated that he slammed the courtroom doors on the way out. The judge leaned over the bench, held up his index finger and thumb, a sliver of space between them, and noted he came that close to finding the man in contempt. Along with an order denying the common law marriage claim, my attorney’s fees got added to the opposing counsel’s bill.

The moral of the story is this: if your best evidence is a screenshot collection and an unstable witness, you probably don’t have a common law marriage.

And don’t get me started on the client who actually had a wedding ceremony, the church lost their paperwork, and a Colorado judge later found the couple wasn’t common law married.

3. Why bother at all, then?

There are real reasons people pursue common law marriage claims. Unmarried couples with joint property end up in civil court with a partition action if a family law judge can’t address their situation. Someone who spent decades in a relationship may feel genuinely entitled to maintenance or a share of retirement assets. Those feelings aren’t wrong. The law just makes it very hard to get there. And it could get costly to try, especially if lawyers get involved.

That isn’t to say you shouldn’t explore whether you’re in a common law marriage. A good (even decent) family law attorney can issue-spot your case, evaluate the strength of your evidence, factor in which judge you’re likely to get and which county you’re in, and give you an honest read on whether to file as unmarried or try your hand at filing a Petition for Dissolution of Marriage.

I’m just saying, you’re probably a sinner (like the rest of us).

1 I honestly don’t know what a special concurrence is, but I gather it’s super-agreeing with the majority opinion or something.