How Does Common Law Divorce Work in Colorado?

A common law divorce in Colorado runs through the same district court process as any other divorce: one spouse files a petition for dissolution, the court imposes a 91-day waiting period, and the case ends with orders on property, maintenance, parenting, and support. The one thing that sets it apart is a threshold question the court may have to answer first — whether a valid common law marriage actually existed. Once that is settled, everything else follows standard Colorado divorce law.

You May Have to Prove the Marriage First

A common law marriage in Colorado carries the same legal weight as a licensed one, which also means it can only be ended through a formal divorce or by death. Walking away does not dissolve it, and the spouses cannot end it by agreement between themselves.¹

The person claiming the marriage carries the burden of proving it. If the other spouse denies the marriage existed, the court may hold a separate hearing on that question before it can address anything else. If you cannot establish a valid marriage, the court has no jurisdiction to treat the case as a divorce, and you lose access to equitable property division and spousal maintenance.

Colorado law requires that both people mutually agreed to be married and held themselves out to the community as spouses. Since 2006, both parties must have been at least 18 at the time and the relationship must not be one Colorado prohibits.² The Colorado Supreme Court’s 2021 decision in Hogsett v. Neale focused the test on whether the couple mutually agreed to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. Where no express agreement exists, courts infer it from the totality of the couple’s conduct.³

Evidence that tends to establish a common law marriage includes:

Joint federal tax returns filed as married filing jointly
Joint bank accounts, shared credit cards, and co-signed loans
Shared leases, mortgages, or deeds listing both parties
Beneficiary designations naming each other as a spouse on insurance, retirement accounts, or wills
Affidavits or testimony from family, friends, or colleagues who understood the couple to be married
Consistent use of a shared last name in social or official settings

No single factor decides the question. Courts weigh everything together, and the inferences drawn from any given behavior depend on context. If you believe you are in a common law marriage and expect to have to prove it, gather this documentation before a separation rather than after.

Filing the Petition and the 91-Day Wait

The process starts when one spouse files a petition for dissolution of marriage in district court. The filing fee is $260.⁴ After filing and serving the other party, Colorado imposes a mandatory 91-day waiting period before the court can finalize the divorce.⁵ Contested cases with disputes over property, children, or maintenance routinely take much longer, and common law cases with a disputed marriage-existence question typically take longer still.

Colorado is a no-fault state. You do not need to prove adultery, abuse, or any other specific wrongdoing. The sole ground for divorce is that the marriage is “irretrievably broken,” and if both spouses agree under oath that it is, the court presumes that to be true.⁶

Dividing Property

Colorado is an equitable distribution state. Equitable means fair given the circumstances, not necessarily equal. The court first classifies each asset as either marital property, acquired during the marriage, or separate property, owned before the marriage or received individually as a gift or inheritance. Only marital property gets divided. The court weighs the length of the marriage, each spouse’s contribution to the marital estate (including non-financial contributions like homemaking or supporting the other’s career), and each party’s economic circumstances.⁷

For common law couples, pinning down when the marriage began is often the sharpest fight. A ceremonial marriage has a wedding date. A common law marriage forms gradually, and the parties may honestly disagree about the year they crossed the line from cohabitation into marriage. That start date drives which assets count as marital, so the stakes are concrete: a house purchased two years before the disputed start date is separate property, while the same house purchased two years after is marital.

Commingled assets add another layer. When separate funds go into a joint account or pay for improvements on jointly owned property, tracing the original source can require forensic accounting. Clear financial records from the start of the relationship are the best defense against losing separate property in a division dispute.

Retirement Accounts

Employer-sponsored retirement plans, including 401(k)s and pensions, can be divided through a Qualified Domestic Relations Order. Colorado law specifically allows direct division of public employee retirement benefits in dissolution proceedings.⁷ Property transferred between spouses as part of a divorce settlement is generally not a taxable event under federal law, provided the transfer occurs within one year of the marriage ending or is otherwise related to the divorce.⁸ The receiving spouse takes the transferring spouse’s tax basis, which means built-in gain or loss carries over. A house transferred at divorce may produce no tax at transfer, but capital gains tax will be calculated from the original purchase price when the recipient eventually sells.

Spousal Maintenance

Colorado uses “maintenance” rather than alimony and applies advisory guidelines that give courts a formula-based starting point. The guideline amount is 40% of the higher earner’s gross monthly income, minus 50% of the lower earner’s gross monthly income, capped so the recipient’s total income does not exceed 40% of combined gross income. The guidelines apply only when the marriage lasted at least three years.⁹

Duration also follows a guideline tied to length of marriage. Short marriages produce shorter awards; marriages of 20 years or more may produce maintenance lasting half the length of the marriage or longer. These figures are advisory. Courts can deviate based on each party’s resources, earning capacity, age, health, and whether one spouse needs time to obtain education or training to become self-supporting.⁹

Here again, the uncertain start date of a common law marriage matters. A court finding the marriage began eight years ago will apply a different duration guideline than one finding it began fifteen years ago, even if the couple lived together the whole time. Establishing when the marriage began is often as consequential as establishing that it existed.

For any divorce finalized after 2018, maintenance payments are not deductible by the payer and not taxable income to the recipient.¹⁰ The payer gets no tax benefit; the recipient owes no tax. Both sides should factor that into any settlement.

Parenting Time and Child Support

Parenting rules do not depend on whether the parents were ceremonially married, common law married, or never married. Colorado uses the term “parental responsibilities,” and the court’s guiding standard is the best interests of the child, with the child’s safety paramount.

Parental responsibilities split into two components. Decision-making responsibility covers major choices about education, healthcare, and religious upbringing. Parenting time governs where the child lives and the schedule each parent follows. Courts can allocate decision-making jointly or to one parent and can structure parenting time in any arrangement that serves the child. Factors include the child’s relationship with each parent, each parent’s willingness to encourage the other’s relationship with the child, the child’s adjustment to home and school, any history of domestic violence or substance abuse, and the child’s own wishes if the child is mature enough to state a reasoned preference.

Child support runs on an income-shares model. The court estimates what the parents would have spent on the child had the family stayed together and divides that amount by each parent’s share of combined income. The calculation weighs each parent’s gross income, parenting time, health insurance, and childcare costs. If a parent is voluntarily unemployed or underemployed, the court can impute income based on what that parent could reasonably earn, with exceptions for a parent who is physically or mentally incapacitated, caring for a child under 24 months old, or serving a prison sentence of 180 days or more.¹¹

Either parent can request a modification if circumstances change significantly, such as a substantial change in income, a shift in parenting time, or a change in the child’s needs. Enforcement can cross state lines through the Federal Parent Locator Service.¹²

Taxes and Federal Benefits After the Divorce

The IRS recognizes common law marriages that are valid under state law, so during the marriage you may have filed jointly.¹³ Once the divorce is final, that filing status ends the same way it would for any divorced couple, and the tax treatment of property transferred in the settlement is governed by 26 USC 1041 as described above.⁸

A valid Colorado common law marriage also qualifies you for Social Security spousal and survivor benefits on the same footing as any married couple, subject to the SSA’s documentation rules: while both spouses are alive, each must submit a statement along with a statement from a blood relative of each spouse; if a spouse has died, the survivor must submit their own statement plus statements from two blood relatives of the deceased.¹⁴ Supporting evidence like mortgage receipts, insurance policies, and bank records showing a shared financial life helps.

If You Have Moved Out of Colorado

Whether another state will recognize your Colorado common law marriage for divorce purposes is not fully settled. Most states honor a marriage valid where it was formed, but the U.S. Supreme Court has not definitively read the Full Faith and Credit Clause to require recognition of every out-of-state marriage. The Respect for Marriage Act, signed in 2022, blocks non-recognition based on race, sex, ethnicity, or national origin, but does not specifically address common law marriage as a category. Before filing anywhere other than Colorado, check with an attorney in your current state.

Federal agencies take a cleaner approach. The IRS, the Social Security Administration, and USCIS all look to the law of the state where the marriage was formed, so a valid Colorado common law marriage keeps its federal status regardless of where you live now.¹³

1
Department of Revenue – Taxation. Common-Law Marriage
2
Justia. Colorado Code 14-2-109.5 – Common Law Marriage
3
Justia. In re Marriage of Hogsett and Neale
4
Colorado Judicial Branch. List of Fees
5
Justia. Colorado Code 14-10-106 – Dissolution of Marriage and Legal Separation
6
Justia. Colorado Code 14-10-110 – Irretrievable Breakdown
7
Justia. Colorado Code 14-10-113 – Disposition of Property – Definitions
8
Office of the Law Revision Counsel. 26 USC 1041 – Transfers of Property Between Spouses or Incident to Divorce
9
Justia. Colorado Code 14-10-114 – Spousal Maintenance – Advisory Guidelines
10
Internal Revenue Service. Topic No. 452, Alimony and Separate Maintenance
11
Justia. Colorado Code 14-10-115 – Child Support Guidelines
12
Administration for Children & Families. Overview of Federal Parent Locator Service
13
Internal Revenue Service. Rev. Rul. 2013-17
14
Social Security Administration. SSA Handbook 1717 – Evidence of Common-Law Marriage