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Living Together - Don't Lose Your Business In An Unplanned Common-Law Marriage
Follow These Steps to Protect Yourself
The fast-paced culture of the new millennium is seeing more couples than ever choosing to live together under the same roof, while remaining unmarried.
Couples need to be aware that cohabiting can create some unintentional consequences, and the need for a divorce involving maintenance and property claims or claims in probate. If you are a business owner, this could include a claim for half of your business.
The Colorado Supreme Court has ruled that a common-law marriage "is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship." A common-law marriage is just as legally binding as a statutory one, so cohabiting without careful thought can create serious problems. The Court has also ruled that cohabitation is necessary but not sufficient in establishing common-law marriage.
Still, if you have already committed to cohabitation with your partner, caution and planning can prevent you from inadvertently "marrying in haste and repenting at leisure." Attention to the following may be helpful:
File separate tax returns or government benefit applications
Doing this is strong evidence that you do not consider yourself and your partner married to one another, as theses documents require a signature and are filled out under penalty of perjury. Filing these documents jointly or listing your partner as your spouse is considered evidence that you are married by common law.
If you have a will or trust, do not refer to your partner as your spouse
In fact, explicitly stating that your partner is not your spouse in such documents can help you prove the non-existence of a common-law marriage.
Beware of how you and your partner introduce yourselves to others
Because the existence of common-law marriage is an issue of fact to be decided by the court, witnesses can be called to testify to whether or not you assumed a marital relationship. If your partner introduces you as married to others and you disagree, your silence does not necessarily translate into consent, as the courts have recognized that this may be influenced by embarrassment or peer pressure. You should nevertheless try to avoid these kinds of statements being made.
Supporting your partner financially
The courts do not look at the amount of money you give to your partner in a relationship as evidence that you are married. You do need to be careful in opening bank accounts and completing loan applications. Any written statements confirming that your partner is your spouse will be ammunition in a contested case.
Don’t use the same last name
This is a very clear example of an "open assumption" of a marital relationship, especially if you are introducing yourself this way to other people.
Be cautious when applying for health insurance or other memberships
Listing your partner as a spouse for an economic advantage, such as cheaper health insurance or gym memberships can be used as evidence that you are common-law married, although the court has recognized that this alone could be due to other factors and is not conclusive.
Consider signing a cohabitation agreement with your partner
A cohabitation agreement explicitly lays out the terms under which you and your partner wish to live and is a legally binding document that states that you do not consider yourselves to be husband and wife. The document can also contain provisions for how you will share property, payment of expenses, what might happen should one of you die, or under what terms you might separate.
Consult an attorney if you disagree with your partner as to whether or not you are married by common law
If your partner claims you are married and seeks to act accordingly with legal action that you disagree with, an attorney can help you to dispute this claim. According to the Colorado Supreme Court, a common-law marriage requires just as much active participation from both parties as a statutory marriage and it is the burden of the party who claims a marriage exists to prove it.
If you and your partner wish to live together without formally marrying, following these guidelines can help to ensure that you avoid inadvertently becoming married without even saying, "I do."
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