Common law married, can we have a ceremony now with a license?

[maneki]

What is the name of your state (only U.S. law)? Colorado
My husband and I are legally common law married in Colorado. We started planning our wedding years ago but do to a bunch of unexpected circumstances we had to postpone the wedding several times and so decided to just go the common law route while still planning the wedding. It's very important to us that we still have a ceremony and I know that since we're legally married we can have anyone perform the wedding for us (heck in Colorado it's even legal to self officiate). What I'm wondering though if can we still actually get a license and do the whole thing (with an officiant)? I really want to change my name to his and it's a lot easier with a marriage license, plus that way there wouldn't be any issues that I've heard can sometimes arise when you can't *prove* the marriage. I can't seem to find info about getting a marriage license after being common law married though. Thanks.

 

[Proserpina]

What is the name of your state (only U.S. law)? Colorado
My husband and I are legally common law married in Colorado. We started planning our wedding years ago but do to a bunch of unexpected circumstances we had to postpone the wedding several times and so decided to just go the common law route while still planning the wedding. It's very important to us that we still have a ceremony and I know that since we're legally married we can have anyone perform the wedding for us (heck in Colorado it's even legal to self officiate). What I'm wondering though if can we still actually get a license and do the whole thing (with an officiant)? I really want to change my name to his and it's a lot easier with a marriage license, plus that way there wouldn't be any issues that I've heard can sometimes arise when you can't *prove* the marriage. I can't seem to find info about getting a marriage license after being common law married though. Thanks.

The thing is, you're already married - you can't remarry (even the same person) without first going through a divorce.

You can have a marriage ceremony though, for your family and friends - but you already know that.

 

[FlyingRon]

The thing is, you're already married - you can't remarry (even the same person) without first going through a divorce.

Sorry, I believe you are wrong there. Colorado does not prohibit the "already married to each other" from getting married again.

CRS 14-2-110 says

(1) The following marriages are prohibited:

(a) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties, except a currently valid marriage between the parties;​

All the other marriage statutes say "unless prohibited" (via this statute).

My interpretation is those already married are free to apply for license and be solemnized in accordance with that.

 

[LdiJ]

Sorry, I believe you are wrong there. Colorado does not prohibit the "already married to each other" from getting married again.

CRS 14-2-110 says

(1) The following marriages are prohibited:

(a) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties, except a currently valid marriage between the parties;​

All the other marriage statutes say "unless prohibited" (via this statute).

My interpretation is those already married are free to apply for license and be solemnized in accordance with that.

Its similar in TX too (another state that still recognizes common law marriages). There is nothing prohibiting a formal marriage between parties already married at common law.

 

[adjusterjack]

I can't seem to find info about getting a marriage license after being common law married though. Thanks.

The other responders have provided you with the cited authority that allows you to get a license and have a ceremony.

The problem I have with your post is where you write:

I really want to change my name to his

One of the elements of a common law marriage is that the wife take the surname of the husband.

According to the Colorado Supreme Court:

"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." People v. Lucero, 747 P. 2d 660 - Colo: Supreme Court 1987.

The cited case decision has a comprehensive discussion about common law marriage and has been cited in many more recent cases. It can be read in its entirety at:

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

I also found a couple of articles on the subject:

http://sls.colostate.edu/data/sites/1/documents/CommonLaw.pdf

http://tornado.state.co.us/gov_dir/leg_dir/olls/PDF/COMMON%20LAW%20MARRIAGE.pdf

If you had to demonstrate to a court that you've been married all these years, would you be successful or would there be elements that you have omitted that would bring doubt?

You need not answer that question here. I only post this to give you food for thought.

 

[Zigner]

Taking of the surname is only one of many things that may be considered. I would argue that, in today's society, it is even less relevant than it was in 1987. There are myriad other points that can be used as evidence that the couple held themselves out to the public as married.

 

[maneki]

I'm not concerned about the common law marriage not being seen as valid. We live together, he's the step-dad to my kids and helps me raise them, we file taxes together, introduce each other as husband and wife, listed on insurance papers as spouse, etc.

So it does sound like we can get a license and make the marriage a formal marriage. That would be awesome. I was just worried that doing something like that would make it look like the previous years of being common law married were no longer valid and I didn't want insurance and tax problems to crop up saying we'd previously filed fraudulently or something like that.

 

[Proserpina]

Well there you go - I learned something new today!