An affidavit of common law marriage in Colorado is a sworn, notarized statement in which two people declare that they are already common law married under Colorado law. Signing it does not create the marriage. It records a marriage that already exists based on the couple’s mutual agreement and their conduct, and it gives you a document to hand to employers, insurers, courts, and federal agencies that would otherwise ask for a marriage certificate. Colorado has no state registry or certificate for common law marriages, so the Colorado Department of Public Health and Environment directs couples to sign an affidavit in front of a notary and file it with a county clerk and recorder.1Colorado Department of Public Health and Environment. Other Topics Regarding Vital Records
What the Affidavit Actually Does
The affidavit is evidence, not a marriage license. A common law marriage forms when two people mutually agree to be spouses and then act on that agreement in daily life. The affidavit puts that reality on paper. Once filed, it becomes a public record, but it is recorded as a document, not as a marriage record.2Pitkin County, CO. Common Law Marriage
An affidavit by itself is not conclusive proof either. The Colorado Supreme Court’s framework requires both a mutual agreement to be spouses and subsequent behavior reflecting that agreement.3Justia Law. In re Marriage of Hogsett and Neale A couple who signs the affidavit but never shares finances, never lives together, and never presents themselves as married would still have a weak claim in a dispute. Treat the document as strong evidence supported by how you actually live.
Who Can Sign One
Both people have to qualify for a common law marriage before the affidavit means anything. Two rules govern that: the statute and the case law.
Under Colorado Revised Statutes section 14-2-109.5, both parties must be at least 18 years old, and the marriage cannot be one that Colorado law prohibits.4Justia Law. Colorado Revised Statutes Title 14 Section 14-2-109.5 Prohibited marriages include one where either person is still legally married to someone else, marriages between ancestors and descendants, siblings including half-siblings, and marriages between aunts or uncles and nieces or nephews.5Justia Law. Colorado Revised Statutes Title 14 Section 14-2-110 A common law marriage entered into on or after September 1, 2006, that fails either requirement is not valid.
The Colorado Supreme Court’s 2021 decision in In re Marriage of Hogsett & Neale supplies the substantive test. The court applies a totality-of-the-circumstances approach: did two people mutually agree to enter a marital relationship, and did their conduct reflect that agreement? No single factor is required, and no single factor is automatic proof. Cohabitation is not required in every case; the court has said that living together does not automatically prove intent to be married, and living apart does not automatically disprove it.3Justia Law. In re Marriage of Hogsett and Neale
What the Form Says
Colorado does not use a single statewide form. CDPHE provides a sample, and individual county clerks often have their own versions.1Colorado Department of Public Health and Environment. Other Topics Regarding Vital Records The wording is similar across versions. A typical affidavit contains sworn statements that:
- Both parties are at least 18 years old.
- No legal impediment to the marriage exists, including a prior marriage that has not ended by death or divorce.
- The parties are married to each other and understand that the common law marriage carries all the rights, privileges, and responsibilities of a ceremonial marriage.
- The marriage can only be ended by death or divorce.
The form collects printed names, signatures, and addresses for both parties, plus a notarization block.6El Paso County. Affidavit of Common Law Marriage Standard county-filed forms do not require Social Security numbers. Some employer versions used for benefits enrollment ask for more.
The affidavit typically asks for the date the common law marriage began. Answer accurately. That date determines when marital rights started, including when property acquired during the relationship becomes marital property subject to division if the couple later divorces. Names on the affidavit should also match the names on your leases, bank accounts, and insurance policies, because inconsistencies invite later challenges.
How to Sign, Notarize, and File
Both parties sign in front of a notary public. The notary verifies each person’s identity through photo ID, witnesses the signatures, and administers the oath. Colorado caps notary fees at $15 per document for an in-person notarization and $25 for an electronic or remote notarization.7Colorado Secretary of State. General Questions – Notary Public FAQs A signed but unnotarized affidavit will be rejected by the clerk.
After notarization, file the original with the county clerk and recorder in the county where you live.2Pitkin County, CO. Common Law Marriage Recording fees vary by county. Request a certified copy at the time of filing so you have one on hand for an employer, insurance company, or government agency without a second trip. The clerk will stamp the document with a reception number and enter it into the public record.
Evidence to Keep Alongside the Affidavit
Because the legal test looks at the whole picture, the affidavit works best supported by records that show you actually live as spouses. Strong claims usually combine several of these:
- Joint bank accounts, shared credit cards, co-signed loans, or jointly titled property.
- Joint federal or state tax returns filed as a married couple.
- Each other listed as spouses on health insurance, life insurance, or retirement beneficiary forms.
- A lease or mortgage in both names, shared utility bills, or mail addressed to both people at the same address.
- Introducing each other as spouses socially, using the same last name, or being known as a married couple.
- Powers of attorney, wills, or advance medical directives naming each other as spouses.
If someone later disputes the marriage, the person claiming it bears the burden of proving it. Consistent records from the start of the relationship make that burden much easier to carry.
Ending a Common Law Marriage
Before you sign, understand this: a common law marriage in Colorado carries the same legal weight as a ceremonial marriage, and it can only end by death or divorce. Separating, moving out, or dropping a shared last name does not dissolve it. In a divorce, property and debts acquired during the marriage are treated as marital property and divided by the court. Spousal maintenance, parental responsibilities, and child support are all in play. Signing the affidavit without understanding this exposes both parties to obligations they cannot walk away from informally.
Using the Affidavit Outside Colorado
A common law marriage validly formed in Colorado will generally be recognized in other states, including states that do not allow new common law marriages to form within their borders. This flows from the Full Faith and Credit Clause of the U.S. Constitution.8Legal Information Institute. Common Law Marriage The practical challenge in another state is proving the marriage happened, which is where a recorded affidavit and consistent supporting records earn their keep.
Social Security and Federal Benefits
The Social Security Administration recognizes common law marriages for spousal and survivor benefits, but the affidavit alone will not satisfy the agency. If both spouses are living, SSA requires a signed statement from each spouse plus a statement from a blood relative of each. If one spouse has died, the surviving spouse must provide their own statement along with statements from two blood relatives of the deceased spouse. The statements go on SSA-specific forms, and the agency asks for supporting evidence like mortgage receipts, bank records, and insurance policies. Where blood relatives cannot be located, SSA may accept statements from others with personal knowledge of the marriage if you can explain why.9Social Security Administration. Evidence of Common-Law Marriage The recorded affidavit strengthens the package but does not replace SSA’s requirements.
Penalties for a False Affidavit
The affidavit is signed under oath, so lying on it is perjury. Under Colorado law, making a materially false statement under oath in an official proceeding is perjury in the first degree, a class 4 felony.10Justia Law. Colorado Revised Statutes Title 18 Section 18-8-502 Someone who signs the affidavit knowing the statements are false, for instance to secure health insurance benefits or an immigration advantage, faces criminal exposure. A fraudulent affidavit can also be challenged and invalidated in civil proceedings, unwinding any benefits, property claims, or legal protections built on it.