ARE YOU INADVERTENTLY MARRIED? ARE YOU SURE?
In Colorado, you could be married and not even know it. No vows, marriage license, bridesmaids or awkward toasts required. Yes, my cohabitating readers, under Colorado law:
If you live with your partner, and
hold yourselves out to the community as being married,
you’re married (maybe).
THERE IS NO TIME REQUIREMENT. For some reason people think you have to live with your partner for seven years. That is a total myth.
WHY DOES IT MATTER?
Whether you are married or not has serious implications for your rights, taxes, assets and how you load your dishwasher. There are a litany of rights, privileges and obligations that come with being married and under Colorado law, there is no difference between a common law spouse and any other spouse.
- If you do not have an estate plan, your common law spouse will inherit all, or nearly all, of your assets.
- If you do have an estate plan, and it doesn’t leave a substantial amount of your assets to your common law spouse, they can demand a share of your assets when you die.
- Your common law spouse has priority to be appointed to certain fiduciary roles if you do not otherwise specify in an estate plan.
- You can’t get a common law divorce. You can stumble into a common law marriage accidentally, but once you do it, you can’t stumble out. You may have to get a divorce decree from a Colorado court if you break up. Your ex-common law spouse will be entitled to alimony and a share of your assets just like any other spouse.
These less-than precise standards apply to both hetero and same-sex couples.
THIS SEEMS WEIRD. WHY DO WE HAVE THESE LAWS?
The original idea, in the bad old days, was that we needed to protect hapless unmarried women who were living in sin (and their bastard children) from being left penniless if the man died. We didn’t feel bad for unmarried women living in sin (I bet they exposed some wrist or something, so they deserved to be left destitute), but society didn’t want these godless tarts on the public dole. So, states adopted common law marriage laws to impose the “blessings” of marriage on folks who were living together.
Forty-three states have done away with this antiquated idea. But not Colorado . . . Colorado has held onto common law marriage and all its unintended consequences.
WHAT IN THE HOLY MATRIMONY IS THE STANDARD?
It’s subjective and squishy. Basically, if two people hold themselves out to the community as being married, intend to be married, and live together, they are married in Colorado. Super helpful, right!?!? Given that the overarching test is about as conclusive as a mood ring, courts look at a number of factors to decide if you are really married or not.
- Did you ever file taxes jointly?
- Do you own property jointly?
- Do you use the same last name or Mrs. and Mr. nomenclature?
- Have you claimed health insurance or other benefits for the other?
- Do you feel a sense of irrational rage anytime you ask your spouse where they want to go out to eat because they always say, “I don’t care; you pick,” but you know they will poo poo any of the restaurants you choose, and if they feel that strongly about it, they should just decide!!! Just kidding about this last one.
An unfortunate consequence of any subjective and mushy legal standard is that it invites litigation. I don’t know about you, I wouldn’t want to go to court to determine whether I was married to my live-in partner based on these standards–especially if my relationship didn’t fit into the prosperity gospel, heteronormative mold.
HOW CAN YOU AVOID CONFUSION.
How can you avoid unintended consequences if you are residing with a romantic partner? If you want to be married, it’s simple, just get a marriage license. But if you do not want to be married, avoid doing any of the things listed above that courts consider an indication of an intent to be married. So don’t file taxes jointly or refer to one another as your husband or wife. Don’t list one another as your spouse on paperwork related to your retirement accounts or insurance. You may also want to consider having a written agreement indicating that you do not intend to be married.
It is also important to have an estate plan. Having a well-considered estate plan can eliminate the risk of litigation after death. The problem is that when an unmarried person dies without estate planning, their relatives (generally parents or siblings) will inherit everything, and their partner will not get a penny. However, if the partner successfully proves common law marriage, the romantic partner will likely inherit everything. It may be that neither of those scenarios reflect your wishes. Call us today at (303) 819-6415 and we can help you reduce the risk of litigation.