From: Amy K. Rosenberg. To: Trusts & Estates Section (Ms. Kerri Klein) Family Law Section (Mr. Todd Stahly)

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1 From: Amy K. Rosenberg To: Trusts & Estates Section (Ms. Kerri Klein) Family Law Section (Mr. Todd Stahly) Colorado Bar Association (Mr. Jeremy Schupbach) Regarding: Abolition of Common Law Marriage in Colorado Date: September 18,

2 Marriage in Colorado Marriage in Colorado may occur in either of two ways: by statute and or at common law. Each is a legal marriage and each creates identical obligations of spouses to each other. Each creates property rights that must be addressed in a dissolution of marriage (C.R.S ) and property rights that vest in the surviving spouse in increasing percentages based on the length of the marriage when one spouse dies (C.R.S et seq.) Each type of marriage may be terminated only by a dissolution, which is governed by statute. Statutory Marriage C.R.S et seq. generally address statutory marriage. C.R.S sets forth the legal requirements for solemnizing and registering a statutory marriage. It states in pertinent part: (1) A marriage may be solemnized by a judge of a court, by a court magistrate, by a retired judge of a court, by a public official whose powers include solemnization of marriages, by the parties to the marriage, or in accordance with any mode of solemnization recognized by any religious denomination or Indian nation or tribe. Either the person solemnizing the marriage or, if no individual acting alone solemnized the marriage, a party to the marriage shall complete the marriage certificate form and forward it to the county clerk and recorder within sixty-three days after the solemnization... The law regarding statutory marriage permits the parties to marry themselves without any other authority. The certificate must simply be completed and recorded. Common Law Marriage Common law marriage arises by the parties mutual agreement to be married, their mutual and open assumption of the marital relationship and consistent and mutual representations to third parties that they are married. There is no statutory definition of common law marriage because it is not created by statute. Colorado regulates common law marriage only at C.R.S , which requires parties to a common law marriage to be 18 years old or older and under no other legal impediment to marriage (e.g., they cannot be already married, mentally incompetent or closely 2

14-10-113) and property rights that vest in the surviving spouse in increasing percentages based on the length of the marriage when one spouse dies (C.R.S. 15-11-201 et seq.

3 related). A large body of case law addresses the elements required to prove existence of a common law marriage. History and Prevalence of Common Law Marriage In the United States, common law marriage is an outgrowth of English common law and American tradition. It accommodated marriage in times of limited access to judges and clergy, especially for those living in remote areas. England abolished common law marriage in the mid- 1700s, requiring, instead a formal marriage ceremony. It was common in the United States for many years, but now exists only in Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas and Utah. (National Conference of State Legislatures, Report August, Required Elements of Common Law Marriage in Colorado In Colorado, the elements of common law marriage are the parties mutual agreement that they are married; their mutual and open assumption of the marital relationship; and their mutual and consistent holding themselves out to third parties that they are married to each other. There is a common but mistaken belief that if the parties reside together for a certain number of years, they are married at common law. Living together may be evidence of common law marriage, but, standing alone, it is not enough. There must be objective evidence of marriage: jointly-owned property (real estate, bank accounts, cars, etc.); introducing each other as husband or wife; wearing wedding rings; filing income tax returns as married; referring to each other as spouses in legal documents (powers of attorney, beneficiary designations for insurance and retirement plans); medical and business records that identify a patient or client as married; wills that identify the spouse; and the perception of their friends and families, based on what the couple consistently tells them, rather than their friends and families own inferences or suppositions. People v. Lucero, 747 P.2d 660, 664 (Colo. 1987); Crandell v. Resley, 804 P.2d 272, 276 (Colo. 1990). 3

It accommodated marriage in times of limited access to judges and clergy, especially for those living in remote areas.

4 Application of the Standards Most people do not understand common law marriage well enough to create it during their lifetimes. However, in the context of decedents estates, when the first of them dies, confusion, fear or greed leads them to assert a spousal right to the estate of the deceased partner. In the context of the dissolution of a relationship, it may be to the advantage of one partner to assert that they were married so that he or she can assert a right to marital property. In the context of an estate, for example, Mark Smith and Martha Jones live together in Mark s home for 15 years. They own their property in their respective names without co-ownership; file tax returns as single; sign wills stating they are single; and omit each as beneficiaries of life insurance policies and retirement accounts. Occasionally, they receive mail addressed to Mr. and Mrs. Mark Smith. Martha sometimes receives mail addressed to Martha Smith or Mrs. Smith. Neither Mark nor Martha corrects the senders. Some neighbors say that they always assumed they were married... but they only remember Mark introducing Martha by her name and vice versa. Physician records identify them as single and they do not refer to each other as husband or wife in public. When Mark dies, Martha claims the share of Mark s estate that he must leave to his spouse (absent a written agreement). After months of expensive discovery and a trial, the court finds no common law marriage. The personal representative of Mark s estate depletes the estate to defeat the groundless claim, to the detriment of Mark s beneficiaries. Support for Common Law Marriage and Opposing Argument Some attorneys argue that common law marriage provides protection to disadvantaged people, especially women, if they live with a partner for many years and forego the opportunity to work for their own wealth and, instead, care for the other partner. They assert that if the survivor can make a case for common law marriage, he or she will receive a share of the decedent s property, either as a former or surviving spouse. However, those individuals may have a false sense of security, believing that a common law relationship exists when it does not. Many spousal claims are baseless and brought in the hopes of a recovery when it was clear that the parties had not decided to be married to each other. It is almost always difficult to determine when the common 4

In the context of the dissolution of a relationship, it may be to the advantage of one partner to assert that they were married so that he or she can assert a right to marital property.

5 law marriage arose for purposes of identifying what constitutes marital property after that date or calculating the share to which the surviving spouse is entitled. Another complication arises when a couple divorces, but the parties continue to live together, raise their children together and hold themselves out as spouses when it is convenient or socially advantageous to do so. If the only legal marriage were statutory marriage, it would be clear that the couple remained single after their divorce until and unless they take the affirmative act of registering their marriage. Conclusion Common law marriage introduces confusion into personal relationships. No valid reason exists for its continued existence. It leads to fraudulent claims in estates and family law matters. Abolition of common law marriage would not invalidate existing common law marriages, but would apply prospectively and provide ongoing clarification of marital status for everyone. Other states have abolished common law marriage, with no apparent resulting harm. Colorado should do the same. 5

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