Divorce at Altitude: A Podcast on Colorado Family Law

Common Law Marriages and Divorce in Colorado | Episode 140

February 02, 2023 Ryan Kalamaya & Amy Goscha
Divorce at Altitude: A Podcast on Colorado Family Law
Common Law Marriages and Divorce in Colorado | Episode 140
Show Notes Transcript

Do common-law marriages necessitate divorces in the state of Colorado? This is one of the questions we receive most often when potential new clients call in that are in a common-law marriage relationship. Ryan Kalamaya and Amy Goscha give some insight on the subject.

Ryan and Amy explain how to enter a common law relationship, what extrinsic evidence can prove it's more than just an informal arrangement, as well as cases both public and personal that put this complex issue into perspective.

Key Points From This Episode:

  • What is common law marriage?
  • What defines common law marriage.
  • The differences between ‘normal’ and common law marriage.
  • The motivations behind claiming common law marriage.
  • How to prove common law marriage.
  • The extrinsic factors that prove marriage ideology.
  • How a Bacharach claim works.
  • Why Colorado is unique with its marriage laws.
  • The importance of cognizance and mindfulness.

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.



Ryan Kalamaya (3s):
Hey everyone. I'm Ryan Kalamaya

Amy Goscha (6s):
And. I'm Amy Goscha.

Ryan Kalamaya (8s):
Welcome to the Divorce at Altitude A Podcast on Colorado. Family Law.

Amy Goscha (13s):
Divorce is not easy. It really sucks. Trust me I. know Besides. being an experienced divorce attorney, I'm also a Divorce client.

Ryan Kalamaya (20s):
Whether you are someone considering divorce or a fellow family law attorney, listen in for weekly tips and insight into topics related to Divorce co parenting and Separation in Colorado. Welcome Back to another episode of Divorce at Altitude. This is Ryan Kalamaya, one of your co-hosts, And I. Am joined by my lovely co-host and business partner, Amy Goscha. Amy, what's going on?

Amy Goscha (50s):
Not much. We're, we have a cool and exciting topic today.

Ryan Kalamaya (54s):
Yeah. So tell me about what we're getting into. Are we gonna say I do over the internet and get married?

Amy Goscha (1m 2s):
Yeah, so we're gonna talk about common law marriage and what does that mean? you know, it's like a topic that comes up in annulment, so it's gonna be pretty fun.

Ryan Kalamaya (1m 11s):
Well, we're gonna unpack on a common law marriage. We're gonna have another episode on annulments, but let's talk about common law marriage. And Colorado's one of the only states, I think there's another one, Massachusetts maybe. I'm not entirely sure about that. But I know that Colorado's unique and common law marriage, but Amy for Listeners that don't know What is common law marriage. What do we mean?

Amy Goscha (1m 34s):
I mean, common law marriage, I mean it dates back. So the history and common law marriage is, it goes back to 1877. It's from England. So essentially if you don't get married by getting like a marriage license or through the statutory law, it's considered common law marriage. So Colorado has actually recognized common law marriage since 1877 and it's been a long time, but there still are surprisingly seven states in the District of Columbia that recognize common law marriage. But we're, we are definitely a minority within the United States.

Ryan Kalamaya (2m 7s):
So too, I was wrong about that, but yes, certainly we are in the minority. One thing that I get asked a lot about, and it's similar, it's up there in terms of, well Ryan, what age does a child get to have a say in what parenting time and who, what parent they get to see? Is it 13, is it 14? The other question is Ryan, we've been together for fill in the blank years. That means that we're common law married. Right?

Amy Goscha (2m 36s):
The answer is no. And it's so funny because the misnomer is, oh, we've been married for seven years. So it's kind of interesting to be interesting to look at the history on why do people think it's like seven years and then you're, you know, married. So it really has nothing to do with timing, which people don't really know. It's really holding yourselves out as married And. We'll get into, you know, some of the case law in Colorado on.

Ryan Kalamaya (2m 59s):
Right. Well you know, I, at the beginning I joked that we were gonna say I do, and the reason I brought that up is that most people assume, you know, marriage as a wedding. I got married in Salita, Mexico with my wife Halleh And. we had a marriage certificate in Colorado before we left. So those were the kind of traditional aspects of a wedding. What's different about common law or why do we have a special term for something that is called common law marriage?

Amy Goscha (3m 32s):
So we have something essentially like in Colorado that says that You can be married even if you don't sign off on that marriage certificate, which is, you know, makes it hard because people, you know, like they do certain things, they, you know, set their lives up financially and then if the relationship doesn't work, then if you're common law married, you actually have to go through a formal Divorce process in Colorado. And one funny story I had thinking about back to my wedding day is we forgot our marriage certificate, you know, so we almost didn't sign that that day. So there's just all these little complications that people have in facts. So that's, you know, why in Colorado it's so interesting because depending on the facts of your case, if you hold yourselves out as married, there are certain, and it's not just defined like you have to have like these 10 things to make you common law married.

Amy Goscha (4m 24s):
It's essentially, you know, extrinsic evidence that the court looks at to determine if you a had an agreement to be married and held yourselves out as married and actually lived that throughout your relationship.

Ryan Kalamaya (4m 38s):
Right. Well we'll get into the, how we prove that or the issues that, the evidence that comes up. One thing I think that might be helpful for Listeners to understand is that there's some motivations behind claiming common law marriage. I mean, in Aspen you've got kind of your traditional, you know, cougar or older guy with a younger girl that there's just these stereotypes and relationships can result. And especially when money is involved, there's an incentive if someone's going to be with, you know, someone for a period of time. There's a big difference between whether you're married and whether you just were boyfriend and girlfriends. So for Listeners that don't really understand that Amy, why would someone claim a common law marriage or why could there be a dispute over if there is a common law marriage or not?

Amy Goscha (5m 28s):
Well, there's a dispute because the first thing in, not all states in the US you know, recognize this, but if you have separate property coming into marriage, the increase in value on that property is marital property. So, you know, if someone, if you've been in a long-term relationship, you might try to claim that you're common law married because you might have, there might have been property that was created during the marriage, you might have kids together. There also might be a spousal maintenance claim. you know, like we kind of start from a, a case on cohabitation, you know, that we'll talk about. But for the person that is, we'll call it the not financial spouse, you know, like they might have a big upside to claiming common law marriage,

Ryan Kalamaya (6m 11s):
Right? Cuz they can get spousal support and property. If they have kids together, they're still going to be able to avail themselves of child support in the court. The analysis under an allocation of parental responsibilities action or some sort of custody determination that people might be familiar with, it's not gonna vary that much. But the real upside for someone to claim common law marriage is that they get the, the property and or the division of property and spousal support. But there could also Amy be disputes on when exactly they were married. And that gets to the separate property and spousal support. So is it just that anyone can be common law married?

Ryan Kalamaya (6m 53s):
What are the kind of requirements and they can be prohibited or are there circumstances that we have some guidance other than, you know, they just hold themselves out to be married?

Amy Goscha (7m 4s):
Yeah, there definitely is guidance in Colorado. I mean one of the first things is, is that you have to be at least 18 years of age in Colorado to have a legal marriage. Another, you know, like benchmark case that we look at. I'll talk about Salzman first. That's a like a cohabitation case where you had two partners who purchased a house and one of the partners, you know, like put a third of the money into the construction of the home. And the court said that, you know, like when dividing that property, usually you would have to look at partition, but there was an unjust enrichment claim that was made in that case. So that's kind of in Colorado what put these cohabitation, you know, come along marriage issues kind of on the map.

Amy Goscha (7m 50s):
And then we go into people V Lucero, that's where it really lays out the two elements that you have to meet in Colorado to be considered common law married. And so the first element is you have to have mutual consent or agreement of the parties and then you have to have mutual and open assumption of a marital relationship. And so probably most of the people who are listening today, they're like, well what the heck does that mean? you know? So we have a case from 2021 that further defined essentially what that means. And so the court in the Nell case in 2021 essentially said that you have to have mutual consent, but then that's also coupled with conduct that was manifested by mutual agreement.

Amy Goscha (8m 35s):
So that's where we get into these extrinsic factors, you know, that we can look at. And so some of those extrinsic factors and you know, you see this Ryan, I see this in my cases where, you know, like it's a culmination of facts that will prove the marriage, you know, that there is an existence of a marriage such as living together joint tax returns. You know, like if someone comes in and says, oh you know, I'm not common law married, but I filed, you know, joint tax returns. I mean the first thing I tell someone is, well are you common law married or did you defraud, you know, the government? So you know, it's either you have to go in and amend your returns or you need to get divorced whether or not you have joint bank accounts, beneficiary designations, whether you held yourselves out as married, you know, when you have the court has to determine if there was a common law marriage.

Amy Goscha (9m 24s):
So it does make it a little more complicated. So if you have a hearing in front of a court as to whether or not we were common law married, you're gonna have probably fact witnesses come in and talk about, you know, how you held yourselves out. So, you know, it's just, it gets complicated

Ryan Kalamaya (9m 39s):
And just for people to understand what that looks like. So ultimately the court, and we'll get into the process next Amy on how this comes up in the process that it's litigated or fought over. But really what happens is the court's trying to decide whether or not these two people, you know, intended to get married and or they, and they held themselves out to be, you know, married. And how that can come up is, you know, friends would relate to or call somebody, Hey, your wife is running late or your husband called and the person doesn't correct them. Or they refer, Hey Amy, meet my wife Halleh.

Ryan Kalamaya (10m 22s):
And when you use those terms, you have wedding, you know, rings on, you have some sort of ceremony or anniversary and you relate that and there there could be a wedding, you know, I had a, certainly someone, they had a wedding, they had wedding pictures, they didn't have a wedding certificate. So it was kind of what, what you had Amy, but then it was gonna be an issue. But really for me, I think some of the most compelling evidence or the joint tax returns and the reason the people they may not understand is that You can, there's different filing statuses for the irs and You can file individually, You can file head of household and You can file, You can file married and married joint, married separate.

Ryan Kalamaya (11m 5s):
But the benefit is oftentimes the tax bracket is higher for married joint. So people will save money by filing joint. And then the other aspect that frequently for me, I see, and I'll ask my client if, if there's any sort of health insurance. So when you designate someone as you know, your significant other You can get, you know, some sort of like my family is on our firm's health insurance plan because they are dependent And we married. But you get into life Valentine's Day cards and bringing in all these people that can testify and triangulate that evidence and Amy, I mean we, we've had cases they, they really are like from an intellectual standpoint, really interesting one where Facebook, Facebook, you know, that used to have that relationship status.

Ryan Kalamaya (11m 56s):
I think it may still do, but

Amy Goscha (11m 58s):
Right, they do

Ryan Kalamaya (11m 59s):
The, the person put married as like their status update or they're in a relationship and, and that person was the person denying that there was a marriage. We also, Georgina And I had a case a long time ago where there was a personal injury lawsuit that was filed before the Divorce and there was a loss of consortium claim, which is basically the loss of love. And You can only legally make that claim if you were married and the court held a hearing and said when you filed that complaint, that was evidence that you intended to be married. So it gets into so many different issues and they tend to be fairly fact intensive.

Ryan Kalamaya (12m 42s):
But to answer other people's like, you know, well isn't it five years or three years or you know, however long, or d we have kids, you know, it really can matter because the relationship, the blurriness, it can get really fuzzy and you know, especially when things go sideways, there's gonna be, you know, differing memories if you will about whether or not someone was or was not married.

Amy Goscha (13m 7s):
Yeah. Another circumstance that comes up that I should flag for a Listeners is that say you get divorced and in your Separation agreement, which is your agreement dividing everything that you owe maintenance here seem to be ex-spouse. If it says that it's contractual, non-modifiable, but it goes, essentially what that means is it's contractual non-modifiable except for death and remarriage. you know, we've all, or at least I've had a few cases over my time where there's a question of, you know, the new spouse's, you know, significant other now that they're common law married, you know, so does that Yeah,

Ryan Kalamaya (13m 42s):
They're, they're, they're life partners. They're soulmates, but they're not married.

Amy Goscha (13m 47s):
Yeah. So I mean, it just gets complicated. And you know, like what I tell people too is with, you know, like whether or not you're married or not, we see this trend that's happening with within the US and younger or even like older people. We're not that old. My brother, you know, lives with his fiance and they don't have a wedding date. Well, you know, like should they have a cohabitation agreement? Because a cohabitation agreement specifically says, we are not common law married, we're not holding ourselves out as married. So, you know, it's a lot of complicated issues that people need to be aware of.

Ryan Kalamaya (14m 20s):
Right. Well, before we get into the process, one thing I wanted to clarify for Listeners, if it wasn't clear, is that the Salzman v back rack is kind of the opposite because it, there was no doubt that they weren't, the boyfriend and girlfriend weren't married. But what happened was the girlfriend, basically they, they had this house together, the husband was a contractor and he helped improve it. And then the, they at one point jointly titled it and then the wife or the, not the wife, the girlfriend had it in her, her name. And then she booted the guy and said, listen, like you're out and you don't get anything because the value of the house, because we were never married.

Ryan Kalamaya (15m 1s):
And so the court said not so fast, you know, the boyfriend contributed sweat equity, he improved the value and that's worth something. On the other hand, he got to live there for a period of time and how much is that worth? So usually when we have these situations where there's no, you know, there is no common law marriage, you will have kind of a derivative claim. It's not just, that's the end of the story because there can be what we call a backer act claim where someone will say, well, you know, I helped, you know, your business or your, in particular your real estate, your house. But then the other person, the owner says, well, you live there for free and you know, that's you, you kind of do a cost benefit analysis.

Ryan Kalamaya (15m 44s):
But if there is going to be a dis dispute over common law, marriage, Amy, how does that shake out? Like what, what happens?

Amy Goscha (15m 52s):
I mean, essentially if you're talking about the context of yeah, Divorce, which is how we deal with it, I mean essentially you're, you have to go through a formal Divorce just like anyone else. And if there's a dispute as to whether or not there's a marriage or not, the court is gonna hold a a hearing on that. So it's gonna be usually a separate hearing to determine are you married, what is the marriage date? you know, like you said you flagged that issue. I mean that's something that is highly contested is when is the date of the marriage, if it's a common law marriage. So you know, it's a whole separate hearing, almost like a hearing when there's a prenup, if there's an issue on validity or enforcement, you know, so it can get pretty expensive.

Amy Goscha (16m 35s):
So if the court finds that there's not a common law marriage and you have people who've been together for a long time and have property, I mean, what you're left with, you know, and you kind of alluded to this is essentially civil remedy. So the remedies that you're gonna see And, I've had to file this in certain cases, it's literally a civil complaint regarding, you know, like partition meaning splitting property. How does that look? Unjust enrichment, you know, joint venture, I mean it just gets really messy and expensive. But if the court finds that yes, you there is a common law marriage, then you're gonna have to proceed down the normal Divorce path,

Ryan Kalamaya (17m 14s):
Right? And then if you know, let's say Eric and Melanie Wolf, if they, there's a claim of a common law marriage and Melanie files a petition for dissolution of marriage. Eric says, whoa, we weren't married, you know, there was no marriage, we were just boyfriend and girlfriend. Then what he would do is file, you know, a motion to dismiss or something, a competing allocation of parental responsibilities, action. And then there would be a hearing on whether or not they were or not married. Because then it doesn't make sense to value property or to deal with spousal support. You still, as I said before, would get into the same process of what happens with the kids child support attorneys fees.

Ryan Kalamaya (17m 54s):
Those are still gonna be relevant. But sometimes Amy, as you see it can result in kind of a race to the courthouse. It can also, it's really important for Eric to understand that if he gets served with a petition for dissolution, he needs to respond and say, I disagree we were not married. And, I see that a lot where there can be a dispute on the date of the marriage and there could be, you know, your brother's example could be, well we were, you know, there was this long-term engagement and, but that could really matter for PURPOSES of calculating separate property or spousal support. So people really need to pay attention.

Ryan Kalamaya (18m 35s):
But the takeaway is that it is a lot more complicated than people make. There is no bright line rule and Colorado is pretty unique. So we have seen some forum shopping, I've seen it where people from other states will come to Colorado because the relationship's kind of on the outs. They'll kind of hunker down here for 90 days and then file because then they can file for a petition of dissolution and then they might, there can be some negotiation there where they get a house or something that they wouldn't otherwise have gotten in the allocation of parental responsibilities action because the exposure for the other party is so great with attorneys fees and they might just say, listen, you know, I don't agree that we're married, but I'll give you something in return financially cuz it's usually kind of financially driven.

Ryan Kalamaya (19m 27s):
Anything else Amy that you think Listeners need to know about? Common law, marriage? It's, we could go on and on. There's not that much case law in Colorado, but you kind of covered all of it, but they just are really, you know, interesting cases from a legal perspective, I think.

Amy Goscha (19m 42s):
Yeah, I think the biggest thing is that when you're in a relationship you never think that the worst is going to be right. And so it's just to be cognizant and mindful of these types of matters, you know, as you're entering those types of relationships. you know, I think that that's another big takeaway.

Ryan Kalamaya (20m 0s):
I agree. Well, until next time, thanks for joining us on Divorce at Altitude Hey everyone, this is Ryan again. Thank You for joining us on Divorce at Altitude. if you found our tips, insight, or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode, visit Divorce at Altitude dot com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our Episodes are also posted on YouTube. You can also find Amy And me Kalamaya Law or 970-315-2365.

Ryan Kalamaya (20m 40s):
That's K A L A M A Y A .law