The Cutting Edge of Common Law Marriage: Written Affidavits Work in Colorado Common Law Cases
In a notable 2026 decision litigated by the Law Office of Joel M Pratt, the Colorado Court of Appeals reaffirmed that proving a common law marriage requires more than signing a document saying you're married. In In re Marriage of Lundin, the court held that even a sworn affidavit of common law marriage does not conclusively establish the existence of a marriage where the surrounding facts suggest the parties never truly intended to live as spouses.
The Dispute
The parties lived together beginning in 2016. After their relationship ended in 2022, Hitchcock filed for dissolution of what she claimed was a common law marriage. Lundin responded that no marriage ever existed.
The centerpiece of Hitchcock's case was a 2021 "Affidavit of Common Law Marriage" signed by both parties. In that document, they represented that they had lived together as husband and wife since 2016, held themselves out as married, and understood that a Colorado common law marriage carries the same legal consequences as a ceremonial marriage.
Why sign the affidavit if Lundin did not believe they were married? According to testimony credited by the trial court, the document was executed so Hitchcock's diabetic son could obtain health insurance coverage through Lundin's employment benefits plan.
The Legal Question: Colorado Common Law Marriage Affidavit
The appeal presented a relatively narrow but important issue: If two people sign a sworn affidavit stating they are common law married, is that enough to establish a marriage as a matter of law?
Hitchcock argued that it should be. She maintained that the affidavit conclusively proved the parties' agreement to be married and therefore ended the inquiry.
The Court of Appeals disagreed.
The Court's Analysis
Relying heavily on the Colorado Supreme Court's decision in Hogsett v. Neale, the court emphasized that the key question in any common law marriage case is whether the parties mutually intended to enter the legal and social institution of marriage and whether their conduct reflected that intent.
The court acknowledged that an express agreement to marry is relevant evidence. However, under Hogsett, mutual agreement alone is not enough. Courts must still examine subsequent conduct and evaluate the totality of the circumstances.
In other words, a signed affidavit is important evidence, but it is not dispositive.
The Special Concurrence: An Uncomfortable Result?
Judge Schutz wrote separately to highlight a troubling aspect of the case.
The concurrence noted that the parties signed a notarized affidavit expressly stating they were common law married and used that representation to obtain a financial benefit available only to married couples. Yet the courts ultimately concluded that no marriage existed.
The concurrence thus questioned whether the law should tolerate such a result. On one hand, treating the affidavit as nonbinding risks rewarding potentially fraudulent or "fraud-adjacent" conduct. On the other hand, treating the affidavit as conclusive could impose the legal burdens of marriage on someone who never intended to be married.
While agreeing that existing precedent required affirmance, the concurrence suggested that further guidance from the Colorado Supreme Court may be needed.
Takeaway
Lundin reinforces that Colorado common law marriage remains a fact-intensive inquiry. Even a sworn affidavit declaring that a couple is married will not automatically create a marriage if the broader evidence shows the parties did not actually live as spouses or intend to enter the marital relationship. The decision also highlights an unresolved tension in Colorado law: how courts should treat formal written representations of marriage when those representations appear to have been made primarily to obtain benefits.
For family law practitioners, the lesson is straightforward: a common law marriage affidavit may be compelling evidence, but it is only one piece of the larger Hogsett "totality of the circumstances" analysis.
Watch this space. And if you have questions about common law marriage in Colorado, contact experienced counsel who can assist.
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