Colorado is one of only seven states that still recognizes common law marriage in 2026, making common law divorce Colorado a significant legal matter for thousands of couples. Under Colorado law, a valid common law marriage requires the same divorce process as a ceremonial marriage, including filing a Petition for Dissolution of Marriage, paying the $230 filing fee, meeting the 91-day residency requirement, and completing the mandatory 91-day waiting period before a court can enter a final decree. Property division in a common law divorce follows C.R.S. § 14-10-113, using equitable distribution principles that may result in an unequal division based on factors like each spouse's contribution to marital assets.
Key Facts: Common Law Divorce in Colorado
| Requirement | Details |
|---|---|
| Filing Fee | $230 (as of January 2026) |
| Response Fee | $116 |
| Residency Requirement | 91 days minimum |
| Waiting Period | 91 days mandatory |
| Grounds for Divorce | Irretrievable breakdown (no-fault only) |
| Property Division | Equitable distribution |
| Common Law States | 7 states recognize (CO, DC, IA, KS, MT, TX, UT) |
| Fee Waiver Available | Yes, if income below 125% FPL |
What Is Common Law Marriage in Colorado?
A common law marriage in Colorado is a legally valid marriage formed without a marriage license or ceremony, requiring only mutual consent to be married and conduct manifesting that agreement. Under C.R.S. § 14-2-109.5, both parties must be at least 18 years old, and the marriage cannot violate prohibitions against bigamy or incest found in C.R.S. § 14-2-110. Colorado courts established the foundational test for common law marriage in People v. Lucero (747 P.2d 660, Colo. 1987), which was refined in the 2021 Hogsett v. Neale decision to focus on whether both partners intended to enter a marital relationship characterized by mutual support and obligation.
The Colorado Supreme Court clarified in Hogsett that cohabitation is no longer required to establish a common law marriage, though it remains a relevant factor. Similarly, publicly holding yourselves out as married is not essential but serves as evidence of marital intent. The court rejected the notion that simply living together for any specific period, such as seven years, automatically creates a common law marriage. Instead, judges examine the totality of circumstances to determine whether both parties genuinely agreed to enter the legal institution of marriage.
Factors Courts Consider Under the Lucero-Hogsett Test
Colorado courts evaluate multiple factors when determining whether a common law marriage exists, with no single factor being dispositive. The original Lucero factors include: cohabitation, reputation in the community as spouses, joint banking and credit accounts, joint property ownership, use of the same surname, and filing joint tax returns. The 2021 Hogsett decision added additional factors reflecting modern relationships: shared financial responsibility through joint leases and bills, joint estate planning documents including wills and powers of attorney, beneficiary and emergency contact designations, and symbols of commitment such as ceremonies, anniversaries, and how the couple refers to each other.
The burden of proof for establishing a common law marriage is "clear, convincing, and positive" evidence. This heightened standard means the party claiming marriage existed must present substantial evidence beyond a mere preponderance. Courts recognize that modern couples may share finances, live together, and raise children without intending to marry, so the evidence must clearly demonstrate both parties' intent to enter the legal relationship of marriage rather than simply a committed partnership.
How to Divorce a Common Law Spouse in Colorado
Divorcing a common law spouse in Colorado requires filing a Petition for Dissolution of Marriage with the district court in the county where either spouse resides, paying the $230 filing fee, and proving that a valid common law marriage existed before the court can proceed with the dissolution. The divorce process follows the same procedures as ceremonial marriages under C.R.S. § 14-10-106, including the mandatory 91-day waiting period after filing and service. If your spouse contests that a common law marriage existed, you must first establish the marriage's validity before the court addresses property division, support, or parenting responsibilities.
Step-by-Step Filing Process
- Gather evidence of your common law marriage (joint accounts, tax returns, affidavits from witnesses, photographs, correspondence showing marital intent)
- Complete Form JDF 1101 (Petition for Dissolution of Marriage) and JDF 1111 (Case Information Sheet)
- File the petition with the district court clerk and pay the $230 filing fee
- Serve your spouse using a process server or certified mail, or have them sign a waiver of service
- Your spouse has 21 days (35 days if served out of state) to file a response and pay the $116 response fee
- Complete mandatory financial disclosures using Form JDF 1111 within 42 days of the petition being served
- Attend mediation if required by local court rules or if children are involved
- Wait for the 91-day mandatory period to expire
- Submit a Separation Agreement (JDF 1115) if uncontested, or proceed to trial if contested
- Obtain the final Decree of Dissolution of Marriage
Proving Your Common Law Marriage in Court
When a common law marriage is disputed, Colorado courts conduct an evidentiary hearing to determine whether the marriage existed before proceeding with the divorce. You should compile comprehensive documentation including: joint federal and state tax returns filed as "married filing jointly," joint bank account statements, property deeds or lease agreements listing both parties, insurance policies naming your spouse as a beneficiary, powers of attorney or healthcare directives designating your spouse, affidavits from family and friends describing your relationship as a marriage, photographs and correspondence using spousal terms, records showing name changes, and any written agreements acknowledging your marriage.
Expert testimony may be valuable in contested cases. A family law attorney can present evidence systematically and argue the Lucero-Hogsett factors persuasively. If the court finds insufficient evidence of common law marriage, the divorce case will be dismissed, and you would need to pursue property division through other legal mechanisms such as partition actions or breach of contract claims, which typically provide less favorable remedies than marital dissolution.
Property Division in Common Law Divorce
Colorado divides marital property in common law divorces using equitable distribution under C.R.S. § 14-10-113, meaning the court divides assets fairly but not necessarily equally, with typical splits ranging from 50/50 to 60/40 depending on factors like each spouse's contribution to acquiring property, economic circumstances, and the value of separate property. All property acquired during the common law marriage is presumed marital property regardless of whose name is on the title, while property acquired before the marriage, by gift, or by inheritance remains separate property unless commingled with marital assets.
Statutory Factors for Property Division
Under C.R.S. § 14-10-113(1), Colorado courts must consider four primary factors when dividing marital property: (a) each spouse's contribution to acquiring marital property, including homemaker contributions; (b) the value of property set apart to each spouse as separate property; (c) the economic circumstances of each spouse when the division becomes effective, including whether awarding the family home to the custodial parent is desirable; and (d) any increase or decrease in separate property value during the marriage, or depletion of separate property for marital purposes.
Appreciation of Separate Property
Colorado law treats appreciation on separate property as marital property under C.R.S. § 14-10-113(4). If you owned a home worth $300,000 before your common law marriage and it appreciated to $450,000 during the marriage, the $150,000 appreciation is marital property subject to division. Similarly, income generated from separate property investments during the marriage becomes marital property. This rule often surprises common law spouses who assumed their premarital assets would remain entirely separate.
Marital Fault Is Irrelevant
Colorado explicitly prohibits courts from considering marital misconduct when dividing property. Whether one spouse was unfaithful, emotionally abusive, or otherwise at fault, the court focuses solely on economic factors. The only exception is economic fault, such as when one spouse dissipates marital assets by gambling, making extravagant purchases, or hiding money in anticipation of divorce. Documentation of wasteful spending may justify an unequal property division favoring the innocent spouse.
Spousal Maintenance (Alimony) in Common Law Divorce
Colorado courts award spousal maintenance in common law divorces under the same guidelines that apply to ceremonial marriages, with C.R.S. § 14-10-114 establishing advisory guidelines for marriages lasting 3 to 20 years when combined gross income is $240,000 or less. For a 10-year common law marriage with combined income meeting the guidelines, maintenance duration would typically be 50% of the marriage length, or 5 years, with the monthly amount calculated at 40% of the higher earner's monthly adjusted gross income minus 50% of the lower earner's income.
Factors Affecting Maintenance Awards
Courts consider multiple factors beyond the advisory guidelines, including: the financial resources of the requesting spouse, the time necessary to acquire education or training for appropriate employment, the standard of living established during the marriage, the duration of the marriage, the age and health of both parties, significant economic or noneconomic contributions to the marriage including homemaking, and any marital property division that accounts for income-producing property.
The challenge in common law divorces often involves determining when the marriage began, which directly affects the marriage duration used in maintenance calculations. If you claim a 15-year common law marriage but your spouse argues it was only 8 years, the court must resolve this factual dispute before calculating maintenance. Clear documentation of when both parties first intended to be married and began holding themselves out as spouses becomes crucial.
Child Custody and Support in Common Law Divorce
Children born during a common law marriage have the same legal status as children of ceremonial marriages, and Colorado courts determine parenting time (custody) and child support using identical standards under C.R.S. § 14-10-124 for parental responsibilities and C.R.S. § 14-10-115 for support calculations. The court's primary consideration is the best interests of the child, examining factors like each parent's relationship with the child, the child's adjustment to home and community, the mental and physical health of all parties, and each parent's ability to encourage a relationship with the other parent.
Child Support Guidelines
Colorado uses an income shares model for child support, combining both parents' adjusted gross incomes and applying a formula based on the number of children and the parenting time schedule. The 2024 child support guidelines consider factors including: gross income from all sources, adjustments for maintenance payments, health insurance costs, work-related childcare expenses, and the number of overnights each parent has with the children. Parents can calculate estimated support using the Colorado Child Support Guidelines worksheet or online calculators provided by the Colorado Judicial Branch.
Jurisdictional Requirements for Children
While the 91-day residency requirement applies to filing for divorce, child custody jurisdiction follows stricter rules under C.R.S. § 14-13-201. Colorado courts have jurisdiction over custody matters only if the child has lived in Colorado for at least 182 consecutive days (approximately 6 months) before the filing. This means you could file for divorce after 91 days of residency but might need to wait longer before the court can address custody if you recently moved to Colorado with your children.
Timeline: Common Law Divorce in Colorado
| Stage | Timeframe | Notes |
|---|---|---|
| Establish residency | 91 days minimum | One spouse must be Colorado resident |
| File petition | Day 1 | Pay $230 filing fee |
| Serve respondent | Within 90 days of filing | Process server, certified mail, or waiver |
| Response deadline | 21-35 days after service | Depends on in-state vs. out-of-state service |
| Financial disclosures | 42 days after service | Both parties must exchange |
| Mandatory waiting period | 91 days | Cannot be waived |
| Uncontested divorce | 3-6 months total | If both parties agree |
| Contested divorce | 9-18 months typical | If common law marriage or other issues disputed |
| Complex contested | 18-24+ months | High-conflict cases with trial |
Contested vs. Uncontested Common Law Divorce Costs
| Cost Category | Uncontested | Contested |
|---|---|---|
| Filing fee | $230 | $230 |
| Response fee | $116 | $116 |
| Service of process | $50-$100 | $50-$150 |
| Attorney fees | $1,500-$3,500 | $10,000-$30,000+ |
| Mediation | $500-$1,500 | $2,000-$5,000 |
| Expert witnesses | Usually none | $2,000-$10,000+ |
| Total estimated | $2,500-$5,500 | $15,000-$50,000+ |
Uncontested divorces where both parties agree on all issues including property division, maintenance, and parenting plans can often be completed without attorney representation, though having a lawyer review your settlement agreement is advisable. Contested cases, especially those disputing whether a common law marriage existed, typically require substantial attorney involvement and may involve expert testimony, significantly increasing costs.
Fee Waivers for Low-Income Filers
Colorado courts waive all filing fees for petitioners whose household income falls at or below 125% of the Federal Poverty Guidelines, approximately $19,563 annually for a single person or $40,188 for a family of four as of January 2026. To apply, complete Form JDF 205 (Motion to File Without Payment) and Form JDF 206 (Proposed Order). If you receive public benefits such as SNAP, Medicaid, TANF, SSI, or LEAP, you may automatically qualify by checking the appropriate box on the form without providing additional financial documentation.
Fee waivers cover the $230 filing fee, $116 response fee, and other court costs but do not cover service of process fees or attorney costs. Colorado Legal Services operates 13 regional offices providing free legal representation to qualifying individuals, and Self-Help Centers at most district courthouses offer free assistance with forms and procedures regardless of income.
Common Law Marriage Recognition Across State Lines
Colorado is one of only seven jurisdictions that currently allow new common law marriages to form: Colorado, District of Columbia, Iowa, Kansas, Montana, Texas, and Utah. If you established a valid common law marriage in Colorado and later move to a state that does not recognize common law marriage, that state must still recognize your Colorado marriage under the Full Faith and Credit Clause of the U.S. Constitution. This means you would need to obtain a formal divorce in your new state to legally end the marriage.
Conversely, if you moved to Colorado from a state that previously recognized common law marriage (such as Alabama, which abolished it in 2017, or South Carolina, which abolished it in 2019), your previously valid common law marriage remains recognized in Colorado. You can seek divorce in Colorado after meeting the 91-day residency requirement, even if your marriage would no longer be possible to form in your original state.
Recent Legal Developments: 2025-2026
Senate Bill 25-014, enacted in 2025, repealed a statutory provision clarifying that certain marriage formality defects do not invalidate an otherwise valid common law marriage. In response, the Colorado General Assembly introduced HB26-1218 in 2026 to restore this clarification and ensure common law marriages remain protected from technical challenges. This legislative activity demonstrates Colorado's continued commitment to recognizing common law marriages while refining the statutory framework.
The 2021 Hogsett v. Neale decision remains the controlling precedent for proving common law marriage, but attorneys and courts continue to apply its principles to new factual situations. Recent cases have emphasized that intent to marry is the core inquiry, and traditional markers like shared surnames or cohabitation are neither required nor sufficient standing alone. Practitioners recommend documenting marital intent through estate planning documents, explicit written acknowledgments, and consistent representation to third parties.
Frequently Asked Questions
How long do you have to live together for common law marriage in Colorado?
Colorado does not require any specific cohabitation period to establish a common law marriage. The Colorado Supreme Court in Hogsett v. Neale (2021) explicitly rejected cohabitation as a requirement, stating that living together is relevant but not essential evidence of marital intent. A common law marriage can exist between couples who maintain separate residences if they otherwise demonstrate mutual agreement to be married and conduct manifesting that agreement. The popular belief that living together for 7 years creates a common law marriage is a myth with no basis in Colorado law.
Can I get a common law divorce if my spouse denies we were married?
Yes, but you must first prove the common law marriage existed in an evidentiary hearing before the court can proceed with the divorce. You bear the burden of establishing the marriage by "clear, convincing, and positive" evidence, which is a higher standard than the typical civil preponderance standard. Present documentation such as joint tax returns filed as married, joint property deeds, affidavits from witnesses who observed your relationship as a marriage, and any written acknowledgments of your married status. If the court finds insufficient evidence, your divorce petition will be dismissed.
What happens to property if the court finds no common law marriage existed?
If the court determines no valid common law marriage existed, you cannot use divorce law to divide property. Instead, you must pursue other legal remedies such as a partition action to divide jointly-owned real estate, a breach of contract claim if you had explicit agreements about property, or unjust enrichment claims if one party substantially benefited from the other's contributions. These alternative remedies typically provide less comprehensive relief than marital dissolution, and you would not be eligible for spousal maintenance or the equitable distribution framework under C.R.S. § 14-10-113.
Do I need a lawyer for a common law divorce in Colorado?
While Colorado allows self-representation in divorce cases, hiring a family law attorney is strongly recommended for common law divorces, especially if your spouse might contest that the marriage existed. The evidentiary requirements for proving a common law marriage under the Lucero-Hogsett test require strategic presentation of facts and legal argument. Attorney fees for an uncontested common law divorce typically range from $1,500 to $3,500, while contested cases may cost $10,000 to $30,000 or more. Colorado Legal Services provides free representation to qualifying low-income individuals.
Can same-sex couples have common law marriages in Colorado?
Yes, same-sex couples can establish common law marriages in Colorado under the same standards that apply to opposite-sex couples. Following the U.S. Supreme Court's Obergefell v. Hodges decision in 2015, all states must recognize same-sex marriages. Colorado courts apply the Lucero-Hogsett factors identically regardless of the parties' genders. Same-sex couples who lived as married partners before 2015 may face additional evidentiary challenges in proving their marriage began before legal recognition, but courts generally apply the same intent-based analysis.
How long does a common law divorce take in Colorado?
The minimum timeline for any Colorado divorce is approximately 91 days due to the mandatory waiting period under C.R.S. § 14-10-106, which cannot be waived. Uncontested common law divorces where both parties agree on all issues typically finalize within 3 to 6 months. Contested cases where the existence of the marriage or property division is disputed commonly take 9 to 18 months. Complex high-conflict cases requiring trial may extend to 18 to 24 months or longer, particularly if the common law marriage dispute requires extensive witness testimony and documentation review.
What if my common law spouse lives in another state?
You can file for divorce in Colorado if you meet the 91-day residency requirement, even if your common law spouse lives elsewhere. The court gains personal jurisdiction over your out-of-state spouse through proper service of process, and you would need to arrange for service by a process server or certified mail in their state of residence. Your spouse has 35 days (rather than 21) to respond when served outside Colorado. The court can grant the divorce and address property division for Colorado property, but enforcement of orders regarding out-of-state property or support may require registration in the other state.
Is a common law marriage as valid as a ceremonial marriage?
Yes, a valid common law marriage in Colorado has identical legal status to a ceremonial marriage in every respect. Common law spouses have the same rights regarding property division under C.R.S. § 14-10-113, spousal maintenance under C.R.S. § 14-10-114, inheritance under intestacy laws, and all other marital benefits. A common law marriage can only be terminated through formal divorce proceedings or death of a spouse. The Colorado Department of Revenue confirms that common law marriages are valid for all purposes including state tax filing status.
Can I establish a common law marriage in Colorado if I'm from out of state?
Yes, you can establish a common law marriage in Colorado even if you are not a Colorado resident, as long as you meet the legal requirements while physically present in Colorado. Some couples visit Colorado specifically to establish a common law marriage that will then be recognized in their home state under the Full Faith and Credit Clause. However, the mutual intent to be married and conduct manifesting that agreement must occur while in Colorado. Simply vacationing in Colorado does not create a common law marriage without clear evidence of marital intent during that time.
How do I prove when my common law marriage began?
The date your common law marriage began affects property division, maintenance duration, and other important calculations. Courts look for the earliest date when both parties mutually agreed to be married and began holding themselves out as spouses. Key evidence includes: the first joint tax return filed as married, the date joint accounts were opened, when you began introducing each other as spouses, when you made joint estate planning documents, and testimony from witnesses who observed the transition from dating to married couple. Establishing a clear start date protects your rights to property acquired during the marriage.
Written by Antonio G. Jimenez, Esq., Florida Bar No. 21022 | Covering Colorado divorce law
This guide provides general information about common law divorce in Colorado and should not be construed as legal advice. Laws change, and individual circumstances vary. Consult a Colorado family law attorney for advice specific to your situation. Filing fees verified as of March 2026. Verify current fees with your local district court clerk before filing.