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    Spousal – Marital Privilege and Common Law Marriages in Colorado

    In a well known Colorado Supreme Court case – People v. Lucero, the Court provided, in the context of a criminal case, the requirements to establish a Colorado Common Law Marriage.

    Elements of Proof

    In Lucero, the defendant was convicted of attempted robbery and conspiracy to commit robbery. He appealed, claiming the court erred in allowing testimony from a woman whom he alleged was his common law wife.

    The defendant sought to invoke the spousal privilege protection in CRS § 13-90-107(1)(a). The Court of Appeals held that the evidence established a common law marriage as a matter of law and that admission of the woman’s testimony was reversible error. However, the Colorado Supreme Court found that the trial court’s ruling lacked sufficient detail to allow the appellate court to determine this issue. The Supreme Court reversed and remanded the case for specific findings in light of the standards outlined by the Supreme Court.

    Intent and Cohabitation

    Although the Supreme Court recognized that “the difficulty of proof is readily apparent” in establishing a common law marriage, it proposed two elements for such required proof.

    The first is that there must be the mutual agreement, consent or intent of the parties to be husband and wife.

    The second element is a mutual and open cohabitation and public assumption of a marital relationship. Thus, the parties’ consent or agreement must manifest itself in mutual public conduct. This element of public acknowledgment is critical in guarding against fraudulent claims of a common law marriage. However, the Supreme Court in Lucero quoted from a treatise on domestic relations and agreed with the suggestion therein that the rules of evidence have largely supplanted the rules of substantive law…. In short, the existence of a common law marriage has come to depend to a very great extent upon the duration and character of the relationship between the parties.

    The Supreme Court previously had ruled in Graham v. Graham that to establish the agreement, there must be evidence both of cohabitation and reputation. Consent may be inferred from cohabitation in repute, with cohabitation defined as holding forth to the world by the manner of daily life, by conduct, demeanor and habits, that the man and woman have agreed to take each other in marriage and to stand in the mutual relation of husband and wife.

    Thus, the court stated, the two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife.

    Lucero provides examples of specific behavior evidencing manifestation of intent: maintenance of joint banking and credit accounts; use of the man’s surname by the woman; use of the man’s surname by children born to the parties; and filing of joint tax returns. Nevertheless, any form of evidence that openly manifests the intent of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred.

    One reason why the Supreme Court reversed the Court of Appeals in Lucero was that the appellate court found the existence of a common law marriage as a matter of law. The Supreme Court stated that the determination “turns on issues of fact and creditability” which are clearly within the trial court’s discretion.

    Therefore, the trial court is implicitly required to make findings on the evidence presented before ruling whether a common law marriage exists. Sufficient evidence of cohabitation and reputation may give rise to a permissible inference of common law marriage. However, it does not give rise to a presumption of common law marriage as a matter of law.

    Burden of Proof

    The established burden of proof regarding the evidence presented is one of “clear, convincing and positive” proof.

    Evidence of the Parties’ Future Intent

    The element of public acknowledgment of a common law marriage is critical in guarding against fraudulent claims of such a marriage.

    Common Law Remarriage

    Public policy in support of marriage and disfavoring divorce dictates that even lesser proof may be required to establish common law remarriage (following the parties’ formal divorce) than is required for an initial common law marriage.

    In another case – In re Frawley, the parties continued to cohabit sporadically following their 1985 divorce. For some time, the ex-wife continued the use of her married name and continued to wear a wedding ring.

    Despite these factors, the bankruptcy court held that while it was “clear that [the parties’] emotional connection survived the divorce …” it did not constitute a common law remarriage. Thus, although the standard for remarriage may be relaxed, there still is a requirement that evidence such as cohabitation, shared finances and joint tax returns be presented to support a finding of common law remarriage.

    While there are specifically articulated elements for a common law marriage to exist—namely, consent or agreement between the parties to be married, as well as open cohabitation and mutual public conduct—the actual determination of whether a common law marriage exists is an issue for the trial court based on the facts presented and the determination of their credibility. The burden of proof on the asserting party is clear and convincing evidence, which is considerably more than a mere preponderance.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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