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Employer Recognition of Common Law Spouse

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bwayne

Junior Member
What is the name of your state (only U.S. law)? Colorado

Hi,

My wife and I have been common law married for 8 years. We have a signed, notarized affidavit of common law marriage.

My question is:

If an employer offers spousal benefits, is the employer legally obligated to recognize a common law spouse?

Thank you!
 


LdiJ

Senior Member
What is the name of your state (only U.S. law)? Colorado

Hi,

My wife and I have been common law married for 8 years. We have a signed, notarized affidavit of common law marriage.

My question is:

If an employer offers spousal benefits, is the employer legally obligated to recognize a common law spouse?

Thank you!
Are you asking the question because you applied for spousal benefits for your common law wife and were denied, or are you asking because you want to know for sure if she is eligible ahead of time?
 

bwayne

Junior Member
Are you asking the question because you applied for spousal benefits for your common law wife and were denied, or are you asking because you want to know for sure if she is eligible ahead of time?
She was denied. But I did my research ahead of time. Based on SHRM.org, I figured it would be fine. Particularly since I had ample documentation.

From: https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/howdoescommonlawmarriageaffecthealthinsuranceeligibility.aspx

For purposes of health insurance, an employer that offers spousal coverage would include in its insurance contractual definition of “spouse” the spouse of a common law marriage. The employer would therefore have to allow the enrollment of a spouse from a common law marriage the same as the spouse from a traditional marriage. Also, under a common law marriage, children have a presumption of legitimacy and would be considered dependents eligible for health coverage. (Under the Patient Protection and Affordable Care Act, or PPACA, a covered employer does not have to offer spousal coverage but does have to cover eligible dependent children to avoid penalties.)


A common law marriage allows persons who live together as man and wife for a sufficient time and with the intent of having an exclusive relationship similar to a marriage to have the legal rights of formally married persons. Once a common law marriage is established, it must be recognized even in states that do not recognize a common law marriage.

As state laws vary on the criteria for a common law marriage, employers should check or seek legal advice on specific provisions and requirements of the state in which they operate regarding common law marriage recognition.

The Full Faith and Credit clause of the U.S. Constitution requires a state to accept as valid a common law marriage established in a state that recognizes a common law marriage. This clause means that a couple with a common law marriage in a state where it is legally recognized may move to another state and maintain the couple’s common law marriage status even if the new state does not legally recognize common law marriage.

Some employers or insurers require a signed affidavit from an employee to recognize the common law marriage before enrolling a common law spouse on the health plan. Employers may also require proof of the common law marriage with evidence such as joint tax returns, checking accounts, mortgage or lease, or other requirements specified under the state law that recognizes common law marriage.​
 

HRZ

Senior Member
Lay view...the issues that count are the ones that define common law marriage in CO ...and at least to my lay scan, you seem to meet the criteria....look it up, double check the points...I do NOT know if it's necessary to record the marriage....but it might be a prudent step to take ....apparently CO provides for recording .

attach a copy of law to your resubmission.
 

justalayman

Senior Member
Do you have proof other than the affidavit? It does require more to be married under common law. Do you file joint income tax returns? Do you live together?

https://coag.gov/resources/frequently-asked-questions/colorado-office-attorney-general-frequently-asked-questions
A common-law marriage in Colorado is valid for all purposes, the same as a ceremonial marriage. Only death or divorce can terminate it. The common-law elements of a valid marriage are that the couples (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; and (5) have the reputation in the community as being married. The single most important element under the common law was the mutual consent of a couple presently to be husband and wife. All the rest were considered evidence of this consent or exchange of promises. No time requirement exists other than the time necessary to establish these circumstances. When proof of common law marriage is required, such as by an insurance company, a signed affidavit can be presented. A sample affidavit is presented here.
Yes. an employer is legally obligated to treat you the same as any other married couple. They do have the right to require you to provide proof of your claim.
 

bwayne

Junior Member
Do you have proof other than the affidavit? It does require more to be married under common law. Do you file joint income tax returns? Do you live together?

https://coag.gov/resources/frequently-asked-questions/colorado-office-attorney-general-frequently-asked-questions


Yes. an employer is legally obligated to treat you the same as any other married couple. They do have the right to require you to provide proof of your claim.
Thanks. We live together and we file taxes together.
 

PayrollHRGuy

Senior Member
https://coag.gov/resources/frequently-asked-questions/colorado-office-attorney-general-frequently-asked-questions

A common-law marriage in Colorado is valid for all purposes, the same as a ceremonial marriage. Only death or divorce can terminate it. The common-law elements of a valid marriage are that the couples (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; and (5) have the reputation in the community as being married. The single most important element under the common law was the mutual consent of a couple presently to be husband and wife. All the rest were considered evidence of this consent or exchange of promises. No time requirement exists other than the time necessary to establish these circumstances. When proof of common law marriage is required, such as by an insurance company, a signed affidavit can be presented. A sample affidavit is presented here https://coag.gov/sites/default/files/contentuploads/ago/FAQ/OAG/common_law_sample_affidavit.pdf.

Common-law marriage is a term used to describe a marriage that has not complied with the statutory requirements most states have enacted as necessary for a ceremonial marriage. The name came from the fact that these marriages were recognized as valid under the common law of England. 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). Since the Colorado legislature has never enacted such a statute, Colorado is part of the minority of states that recognize the validity of common-law marriages.

If you desire a legal opinion relating to a specific situation, you should consult your own attorney.
 
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adjusterjack

Senior Member
Since the Colorado legislature has never enacted such a statute, Colorado is part of the minority of states that recognize the validity of common-law marriages.
Actually, Colorado does have a statute that recognizes the validity of common law marriage.

TITLE 14. DOMESTIC MATTERS
MARRIAGE AND RIGHTS OF MARRIED WOMEN
ARTICLE 2.MARRIAGE AND RIGHTS OF MARRIED WOMEN
PART 1. UNIFORM MARRIAGE ACT
14-2-109.5. Common law marriage - age restrictions
(1) A common law marriage entered into on or after September 1, 2006, shall not be recognized as a valid marriage in this state unless, at the time the common law marriage is entered into:
(a) Each party is eighteen years of age or older; and
(b) The marriage is not prohibited, as provided in section 14-2-110.
(2) Notwithstanding the provisions of section 14-2-112, a common law marriage contracted within or outside this state on or after September 1, 2006, that does not satisfy the requirements specified in subsection (1) of this section shall not be recognized as valid in this state.
A common law marriage is therefore valid if the parties are over 18 and it's not a marriage prohibited by statute.

Unfortunately, the statute does not provide us with the elements of a common law marriage nor does it compel anybody to accept anybody as common law married without proof sufficient to the person or entity being asked to accept the common law marriage.
 

adjusterjack

Senior Member
Regardless of the guides, opinions and interpretations that have been presented, I don't see your employer being obligated to accept your common law marriage without a court order.

Or, a marriage certificate.
 

PayrollHRGuy

Senior Member
Actually, Colorado does have a statute that recognizes the validity of common law marriage.
The statute that the paragraph I quoted is referring to is one that does NOT recognize common law marriages.

I didn't like how they wrote the paragraph either but it was a direct cut and paste from the CO AG's faq.
 

PayrollHRGuy

Senior Member

justalayman

Senior Member

Taxing Matters

Overtaxed Member
Along with that, from the coag website;

When proof of common law marriage is required, such as by an insurance company, a signed affidavit can be presented. A sample affidavit is presented here.
The affidavit can certainly be presented. But nothing in Colorado law says that the affidavit is conclusive proof of a common law marriage nor does any Colorado law compel an employer or insurance company to accept the affidavit as valid.
 

justalayman

Senior Member
The affidavit can certainly be presented. But nothing in Colorado law says that the affidavit is conclusive proof of a common law marriage nor does any Colorado law compel an employer or insurance company to accept the affidavit as valid.
Hey, I simply cut and pasted from the coag website.

What I said is the employer has to treat married couples the same. Proving marriage is the question at hand.
 

PayrollHRGuy

Senior Member
https://lawhelp.coloradolegalservices.org/resource/common-law-marriage-faq Once it's been determined that a common-law marriage does exist, there is no difference. The Colorado Supreme Court has ruled that discrimination against common-law marriages (for instance, offering different benefits to employees who have common-law marriages or refusing to rent to tenants who are married by common law) is unconstitutional. If you have a valid common-law marriage, you should be able to enjoy all the rights and responsibilities of marriage, including benefits, insurance, pension, and inheritance.
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.)
 

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