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Jennifer Helland - Divorce Attorney in Colorado Springs

Written by Jennifer Helland

Common Law Marriage

On February 21, 2019, the Colorado Court of Appeals gave more definition as to what is necessary to prove the existence of a common law marriage. In its opinion in In re Estate of Yudkin, the Court reversed and remanded the lower court’s order rejecting a claim of common law marriage by one of the parties.

This opinion, which is out of a probate case involved an estate dispute. In this case the decendent’s ex-wife sought  informal appointment as the personal representative of the estate. The Appellant objected to the appointment claiming that she was the decedent’s common law wife and thus had priority. An evidentiary hearing was held. During the hearing the evidence presented established that the parties had cohabitated for eight years, agreed to be married and held themselves  out in the community as a married couple.  They did not file joint tax returns nor have other indicia of a common law marriage. The Court found that due to absence of these factors there was not a common law marriage.

This finding is contrary to a 1987 Colorado Supreme Court case, People v. Lucero, 747 P.2d 660 (Colo. 1987). In that case the Court found that if there is an agreement to be married and the parties cohabitate and have a reputation in the community as husband and wife, a common law marriage has been established. Further, any actions taken (or not taken) by the parties after those essential factors are established are legally irrelevant.

Citing Lucerothe Colorado Court of appeals found that the magistrate’s determination of no common law marriage was an abuse of discretion and reversed the Court’s ruling and remanded the case to the trial court.

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