Employer Recognition of Common Law Spouse

[PayrollHRGuy]

Unless the employer is self insured and even if they are it may simply be a matter of ignorance on the part of whomever is handling benefits for the employer. The OP should print the links that have been listed in this thread and at least take them in with him.

Here in Arkansas, a state that doesn't have common law marriage but does honor those of other states, I had a week long argument for an employee that ended finally with the general counsel of BCBS of Arkansas finally reading the law and understanding, that common law marriages from other states had to be accepted.

 

[Taxing Matters]

Add to that the AG's faq information and the suggested affidavit and it sounds like the employer would be setting themselves up for a discrimination suit. (Although I admit I didn't look up the CO Supreme Court case mentioned above.)

The employer may not discriminate against the employee because his marriage is by common law rather than by marriage license. But the employer may seek proof to satisfy itself that there really is a common law marriage, and the affidavit, while useful, is not conclusive proof of a common law marriage. Once the employer has established the employee is married by common law, then the employer needs to provide the same benefits that any other married employee receives.

 

[Zigner]

Sometimes that little piece of payer from the guvment sure comes in handy, huh?

 

[PayrollHRGuy]

The problem with conclusive proof is what is required by the state to be considered common law married.

(1) are free to contract a valid ceremonial marriage, i.e., they are not already married to someone else
(2) hold themselves out as husband and wife
(3) consent to the marriage
(4) live together
(5) have the reputation in the community as being married.

The AG has suggested the affidavit and most employers should accept that.

 

[adjusterjack]

In 1877, the United States Supreme Court stated, in an action that questioned the validity of a non ceremonial marriage, that marriages that were valid under common law were still valid unless the state passed a statute specifically forbidding them. Meisher v. Moore, 96 U.S. 76 (1877).

By the way, it's Meister, not Meisher. And it's not a Colorado case.

Meister v. Moore was an appeal from a Michigan case that addressed the Michigan statutes at the time.

https://www.courtlistener.com/opinion/89671/meister-v-moore/

The US Supreme Court did not "state" that. One might conclude that after reading the decision, which does not bear repeating here because a more appropriate decision is from the Colorado Supreme Court in People v. Lucero (1987) which went to great lengths to explain Colorado's view of common law marriage in Section II:

https://scholar.google.com/scholar_case?case=5429431506461478958&q=common+law+marriage&hl=en&as_sdt=4,6

"Our formulations of the requirement of conduct manifesting or confirming the parties' understanding or agreement have taken many forms. See, e.g., Graham v. Graham, 130 Colo. at 227, 274 P.2d at 606 (to establish the agreement there must be evidence both of cohabitation and reputation); In re Estate of Danikas, 76 Colo. 191, 194, 230 P. 608, 610 (1924) (illicit cohabitation will not support reputation as proof of marriage; reputation alone is not enough); Smith v. People, 64 Colo. at 294, 170 P. at 960 (consent may be inferred from cohabitation and repute; cohabitation is "holding forth to the world by the manner of daily life, by conduct, demeanor, and habits, that the man and woman have agreed to take each other in marriage and to stand in the mutual relation of husband and wife."); see Taylor v. Taylor, 10 Colo. App. at 305, 50 P. at 1049 (1897) (agreement may be presumed from evidence of cohabitation and repute; general reputation or repute means "the understanding among the neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife....") The two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife. Specific behavior that may be considered includes maintenance of joint banking and credit accounts; purchase and joint ownership of property; the use of the man's surname by the woman; the use of the man's surname by children born to the parties; and the filing of joint tax returns. See Mills, Common Law Marriage in Colorado, 16 Colo. Law. 252, 257 (1987). However, there is no single form that any such evidence must take. Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred."

 

[denverlaborlaw]

You don't say what type of benefit is at issue here but that may play a role in what you need to do to prove the common law marriage to the employer. If this is for ERISA-protected plan benefits then the plan document *might* describe what the plan administrator must accept as proof of marriage. You may also be able to avail yourself of the claim process under the plan rules to force the plan administrator to take a closer look at the law and commit to a response. Ultimately you may need to hire an employment lawyer to work this out or file suit to enforce your rights.

 

[quincy]

You don't say what type of benefit is at issue here but that may play a role in what you need to do to prove the common law marriage to the employer. If this is for ERISA-protected plan benefits then the plan document *might* describe what the plan administrator must accept as proof of marriage. You may also be able to avail yourself of the claim process under the plan rules to force the plan administrator to take a closer look at the law and commit to a response. Ultimately you may need to hire an employment lawyer to work this out or file suit to enforce your rights.

This thread is two months old. It is preferred on this forum that older threads are not revived by anyone but the original poster.

If you want to advertise yourself as an attorney on this site, you need to have your credentials verified by the administrator of this site first. You can use the "contact us" at the bottom of the page to start the process.

Thanks.