It’s actually really quite simple. There are three requirements to satisfy a common law marriage. First, the couple must cohabitate together. Second, they must agree that they consider themselves husband and wife. Third, they must hold themselves out as a married couple to the public—family, friends, and strangers.
The trickier part is determining whether or not these requirements have been met. There are certain factors that have been developed over the years to determine whether or not these requirements have been met. You can’t just live with someone for a month and one day jokingly say that you are married to each other to qualify as a common law marriage. There is a bit more detail than that. While these factors are helpful in determining if a common law marriage exists, no one factor is determinative. Some of these factors include but are not limited to:
- Living with a person for a significant period of time (longer the better)
- Filing taxes jointly
- Sharing bank accounts, credit cards, co-signing on loans
- Claiming a partner as a dependent on your insurance
- Introducing yourself married to new people
- Owning property together
The more of these things you have done, the more likely you are to be common law married.
Common law married people can get divorces too. If you and your spouse decide you want to get divorce, and you both are in agreement that you are common law married divorce will be simpler. However, if one person in the relationship denies a common law marriage exists, you automatically have one more step to the divorce process than a legally married couple. Unfortunately you will be forced to have a hearing on whether or not you are common law married. This is when the above requirements and factors come into play.
Once a Court determines that you are common law married, the couple goes through the divorce process just like any legally married couple would. That being said, you have the same rights afforded to legally married folks. You get to divide up your personal property, real property, bank accounts, retirement accounts. You even get a chance to have a spousal maintenance award. You also have the same legal rights as married parents; parenting time, decision making, and child support are also determined. It’s the same exact process as those who were legally married.
If the Court determines you’re not common law married, that’s it. Case dismissed. Depending on how badly you want to fight over property you can file a civil suit for division of property. It should be noted civil court is incredibly different than family court and may be more intensive to divide up property. The one big thing you can’t achieve in civil court is a spousal maintenance award. If you have children you file an Allocation of Parental Responsibilities action. Essentially it’s the custody part of a divorce case, without the divorce stuff. An Allocation of Parental Responsibilities action is designed for unmarried people who have children together.
Christopher Nicolaysen is a Family law Attorney who practices in Colorado Springs, CO. He graduated from Denver Sturm College of Law, and has been practicing law for several years now. Christopher Nicolaysen is passionate about helping you solve your family matters. Learn more about his experience here.