I’m about to married, how should I prepare?

Planning a wedding can be exciting and fun, but preparing for marriage is about more than a wedding. Perhaps you are attending church or personal marriage counseling sessions or a pre-marriage course. These are often helpful for couples planning their future. However, while planning for marriage it is also a good idea to contemplate the potential the marriage could result in divorce. This may seem unromantic or pessimistic, but it is something every couple should at least contemplate because contemplating this possibility can help you determine if a pre-nuptial agreement is right for you.  Pre-nuptial agreements are a particularly good idea if one or both parties enter the marriage with property or even debts that they want to ensure are not treated as martial property in a divorce. However, pre-nuptial agreements cannot address child custody and a court will treat any such provisions as void. Smith, Shellenberger, and Salazar LLC, can help you draft the appropriate agreement for your situation.

Also note that having a pre-nuptial agreement does not automatically mean it is enforceable, or that it applies to all the property your spouse claims it does in a divorce. If you believe that your pre-nuptial agreement might not be enforceable or have concerns about the enforcement of the agreement in an upcoming divorce you should consult an attorney as these are often difficult legal arguments to understand and to raise in court. If you have questions about the enforcement of a pre-nuptial agreement in an upcoming divorce please feel free to schedule a consultation with our attorneys.

 

I was never formally married in a ceremony. Am I married?

You may be a party to a common law marriage.

A dispute over the existence of a common law marriage usually only arises at the end of a relationship. At that time, it is going to be up to the court to determine whether such a marriage existed. No Colorado law enumerates the requirements of a common law marriage, C.R.S. 14-2-104(3), enumerates the requirements for a Colorado marriage and states: “Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman.”

 

Thus, the courts will look to case law to determine the requirements for a common law marriage. Case law states 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.”  People v. Lucero, 747 P.2d 660 (Colo. 1987). This means the couple must:

  1. Cohabitate,
  2. Mutually agree to be married, and
  3. Openly hold themselves out to the public as married.

 

Each of these criteria can be demonstrated a number of different ways. A couple does not need to live together for a particular period of time, but the duration of the common law marriage can only be as long as the duration of the parties’ cohabitation. A couple does not need to put their agreement to be married in writing.  Further, openly holding each other out as married can vary from telling family friends you are spouses to filing joint taxes. As you can see, this means that all aspects of a common law marriage can be grounds for extensive litigation.

The diverse forms of evidence for these criteria and the many ways that people can attempt to prove an agreement and holding themselves out as married, often require extensive hearings if the parties do not agree on the existence or duration of a common law marriage. At such a hearing judges often require rather extensive evidence and uniformity of that evidence. Thus, if you believe you are part of a contested common law marriage, Smith, Shellenberger, and Salazar, LLC can be your advocate in navigating the difficult evidentiary and proof issues involved in a contested common law marriage.

What is a marriage?

In Colorado you can be married two ways:

1) Through a ceremony that follows the procedure directed in the Colorado statutes or;

2) Enter into a common law marriage.

 

Marriage by ceremony is what people traditionally think of as a marriage. However, remember that a marriage does not need to be performed in a church, courthouse, or in any particular type of ceremony. Colorado has adopted the Uniform Marriage Act and under Colorado law these are the requirements for a ceremonial marriage:

  1. Marriage License.  You must get a marriage license from your local county clerk and recorder, and provide some basic demographic information.  If you are previously divorced, you must furnish proof of your divorce.  C.R.S. §14-2-105.  Though you and your husband/wife must sign the license, only one of you needs to appear in person to obtain the license.  C.R.S. §14-2-106.
  2. Solemnize the Marriage.  The license must then be solemnized within 30 days, pursuant to C.R.S. §14-2-107.  Though parties typically have a judge or a minister perform the ceremony, Colorado allows the marriage to be solemnized by a judge, magistrate, minister, or even one of the parties to the marriage.  C.R.S. §14-2-109.
  3. Register the Marriage.  The person who solemnized the marriage must complete the marriage certificate form, which then has to be forwarded to the county clerk & recorder within 60 days of the ceremony.

Also remember that in Colorado you must be at least 18 years-old to get married or have permission from a parent or guardian. C.R.S. 14-2-106.  Children under 16 years-old may marry with both parental consent, and permission