Courts in Colorado can divide a couple’s home equity, retirement growth, and savings accounts under C.R.S. § 14-10-113 — but only after that couple proves a valid common law marriage existed in the first place. In Kansas, K.S.A. § 23-2802 goes even further: a court can divide property one spouse owned before the relationship ever started. And in Montana, MCA § 40-4-202 puts every asset on the table — “however and whenever acquired.”
Courts determine whether a marriage exists before they decide how property is divided.
The catch is that none of it applies unless the marriage clears one threshold: proof that it existed at all.
- A proven common law marriage triggers the same property division statutes as a licensed marriage in the states covered here — Colorado, Kansas, and Montana.
- Colorado’s C.R.S. § 14-10-113 limits division to marital property, though appreciation on separate assets is also divisible.
- Kansas courts can divide all property — including pre-marital assets — under K.S.A. § 23-2802.
- Montana’s MCA § 40-4-202 reaches property “however and whenever acquired,” making it the broadest statute among the three.
- If the common law marriage cannot be proven, there is no divorce proceeding and no equitable distribution — property stays with whoever holds title.
Property division outcomes depend on the state where the marriage was formed and individual circumstances.
Below is a full breakdown of what happens to property in a common law marriage — including how courts divide assets, what happens when one partner denies the marriage, and the financial consequences of failing to prove it.
You Have to Prove the Marriage Before Anything Gets Divided
A court will not divide property until the party claiming a common law marriage proves it actually existed. This is the threshold that separates a common law spouse from a cohabitant with no equitable distribution rights.
Colorado, Kansas, and Montana — all of which still recognize common law marriage — require three elements. The couple must have mutually agreed to be married. They must have lived together. And they must have held themselves out publicly as a married couple.
Colorado’s C.R.S. § 14-2-109.5 adds a statutory floor: both parties must be at least 18 when the common law marriage is entered. Kansas imposes the same age requirement under K.S.A. § 23-2502. Montana’s statute — MCA § 40-1-403 — states that common law marriages “are not invalidated by this chapter,” leaving the specific elements to case law established by the Montana Supreme Court in In re Estate of Ober, 2003 MT 7.
The Montana Judicial Branch is direct about the public-reputation requirement: a common law marriage will not be found where it was kept secret from the community. No minimum cohabitation period exists in any of the three states. Two competent adults could share a home for decades without forming a common law marriage — if they never agreed to be married and never told anyone they were.
What Evidence Courts Actually Rely On
Not all evidence carries equal weight. Courts in these three states evaluate a hierarchy of proof:
Strongest evidence: Joint federal tax returns filed as “married filing jointly.” These are sworn statements to the IRS and are difficult for a denying partner to explain away. Beneficiary designations naming each other as “spouse” on insurance policies, retirement accounts, or bank accounts also carry significant weight.
Moderate evidence: Shared bank accounts, joint property titles, using the same last name, and co-signed loans or mortgages. These show financial intermingling and public presentation as a unit — but individually, each can exist outside a marriage.
Weaker evidence: Testimony from friends, family, and coworkers about how the couple presented themselves. Helpful, but uncorroborated testimony alone is rarely sufficient.
What Happens When Only One Partner Claims the Marriage Exists
This is where common law marriage disputes turn adversarial. One partner files for divorce claiming a valid common law marriage. The other denies it — specifically to avoid property division, maintenance obligations, or both.
The burden falls entirely on the partner asserting the marriage. The denying partner does not need to disprove the marriage. They simply need to create enough doubt about one of the three required elements.
Courts resolve this through a threshold hearing before any property is divided. If the judge finds sufficient evidence of mutual agreement, cohabitation, and public reputation — the case proceeds as a standard divorce with full equitable distribution. If the evidence falls short — the case is dismissed as a non-marital relationship, and no division occurs.
Here is how this plays out: a couple in Colorado lives together for 12 years and files joint federal tax returns, but one partner consistently introduces the other as a “partner” — not “spouse” — at work. When the relationship ends, the non-titled partner claims a common law marriage. The joint tax returns cut strongly in favor of marriage. But the consistent avoidance of spousal language cuts against it. The judge weighs the totality of evidence — and the outcome turns on which side’s proof is more credible.
Filing as “married filing jointly” and later denying a marriage existed forces the denying partner to explain a sworn federal document.
What Happens to Property While the Marriage Is Being Disputed
The threshold hearing — where the court decides whether a common law marriage existed — can take months. During that period, no property division occurs because the court has not yet established whether it has jurisdiction to divide anything.
Existing ownership remains in place. The partner whose name is on the deed controls the house. The partner whose name is on the bank account controls the funds. There is no automatic freeze and no interim split.
This creates a practical risk. The titled partner can continue making financial decisions — selling assets, draining accounts, taking on debt — while the other partner waits for the court to determine whether a marriage existed in the first place. If the court ultimately finds no marriage, those financial moves face no family-law scrutiny. If the court finds a valid marriage, the non-titled partner may argue dissipation under K.S.A. § 23-2802(c)(8) or similar statutory provisions — but only after the fact.
A partner who believes a common law marriage exists and fears asset movement during the dispute may seek temporary restraining orders or other interim relief from the court. Whether such orders are available depends on the procedural rules of the specific jurisdiction and the judge’s assessment of the evidence presented at that early stage.
How Courts Divide Property Once the Marriage Is Proven
Once a common law marriage clears the proof threshold, the divorce proceeds under the same property division rules that apply to any licensed marriage. In the three states covered here, no statute draws a distinction between marriages formed with a license and marriages formed by mutual agreement.
Colorado divides marital property equitably under C.R.S. § 14-10-113. The court considers each spouse’s contribution to acquiring property — including homemaker contributions — the value of property set apart to each spouse, the economic circumstances at time of division, and changes in the value of separate property during the marriage.
Kansas goes further. Under K.S.A. § 23-2802, the court divides all real and personal property — “whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage or acquired by the spouses’ joint efforts.” Ten statutory factors guide the split: age, duration of marriage, property owned, earning capacities, how and when property was acquired, family ties, maintenance allowance, dissipation of assets, tax consequences, and any other factors the court considers necessary.
Montana’s MCA § 40-4-202 directs courts to “equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired.” Montana also explicitly bars courts from considering marital misconduct in the division.
All three statutes list homemaker contributions as a factor courts must consider when dividing property.
What Property Is Actually on the Table
This is where the three states diverge — and where common law marriage couples face different financial exposure depending on location.
Colorado limits division to marital property. Under C.R.S. § 14-10-113(2), separate property — assets owned before marriage, gifts, and inheritances — stays with the owning spouse. But § 14-10-113(4) creates a critical exception: appreciation on separate property during the marriage is marital. A house worth $250,000 when the common law marriage began and $500,000 when it ends produces $250,000 in marital appreciation subject to division.
Kansas and Montana do not draw this line. In Kansas, the court can divide property owned before the marriage under K.S.A. § 23-2802. In Montana, the court reaches property “however and whenever acquired” under MCA § 40-4-202 — including inherited assets and gifts received by one spouse.
For couples trying to understand how community property and equitable distribution systems compare across states, the scope difference amplifies in a common law marriage context because the disputed start date of the marriage widens or narrows the window of divisible assets.
A Financial Breakdown: Proven vs. Not Proven
Consider a couple that shared a life in Kansas for 10 years. One partner brought a $300,000 investment portfolio and a $400,000 home into the relationship. During the 10 years, they accumulated $200,000 in joint savings and $150,000 in retirement growth. The total estate is roughly $1,050,000.
If the common law marriage is proven: The court can divide the entire $1,050,000 under K.S.A. § 23-2802 — including the pre-marital portfolio and house. The manner and time of acquisition are factors the court considers, but no asset is automatically shielded. The non-titled partner could receive a substantial equitable share.
If the common law marriage is not proven: There is no divorce proceeding. The $300,000 portfolio stays with its titled owner. The $400,000 house stays with its titled owner. The $200,000 in joint savings may be subject to a partition claim if both names appear on the accounts — but any solely-titled asset is beyond the reach of family law. The non-titled partner’s decade of contributions generates no equitable distribution rights.
The gap between these two outcomes can exceed $500,000.
The Disputed Marriage Start Date Changes Everything
A licensed marriage has a date recorded on a certificate. A common law marriage does not.
The start date controls the window of property accumulation a court can divide. An earlier start date captures more assets as marital property. A later start date shields more pre-relationship wealth.
Courts set the start date based on the earliest point where all three elements — mutual agreement, cohabitation, and public reputation — existed simultaneously. That might be the date a couple first filed a joint tax return, signed a lease using the same last name, or the date family members first understood them to be married.
In Kansas, K.S.A. § 23-2802(b) allows the court to set a valuation date that may be the date of separation, the filing date, or the trial date. But the marriage start date determines which assets fall within the court’s division authority.
A five-year dispute over the start date can shift hundreds of thousands of dollars between spouses — particularly in all-property states like Kansas and Montana where even pre-marital assets are divisible.
What Happens If You Move to a State That Does Not Recognize Common Law Marriage
Moving does not dissolve a common law marriage. A valid common law marriage must be formally ended through divorce regardless of where the couple currently lives.
The IRS has maintained this position since 1958. Revenue Ruling 2013-17 reaffirmed that a taxpayer who enters a common law marriage in a state that recognizes such marriages “shall, for purposes of Federal income tax filing status and personal exemptions, be considered married notwithstanding that the taxpayer and the taxpayer’s spouse are currently domiciled in a state that requires a ceremony.” The tax consequences of property division — including tax-free interspousal transfers — apply equally to common law marriages recognized under state law.
The Full Faith and Credit Clause of the U.S. Constitution (Article IV, Section 1) generally requires states to recognize marriages validly formed in other states. The Connecticut General Assembly’s Office of Legislative Research confirmed this principle in a legislative report: a common law marriage entered in a recognizing state “will be recognized in Connecticut if it was valid under the other state’s law.”
A couple that forms a valid common law marriage in Colorado and moves to California remains legally married. Without a formal divorce, either spouse can later assert the marriage and invoke property division rights.
What Happens If You Cannot Prove the Marriage
Without a proven common law marriage, there is no divorce court jurisdiction. No equitable distribution. No spousal support. Property remains with whoever holds title.
A partner who contributed financially to a home for a decade but whose name never appeared on the deed has no family law remedy. The only options are civil claims — and they produce narrower results.
If both partners hold title to property, either can file a partition action to force a division or sale. In Colorado, partition is governed by C.R.S. §§ 38-28-101 through 38-28-110. A partner who contributed money or labor to another person’s property may pursue an unjust enrichment claim — but this requires proving the titled partner received a benefit under circumstances that make retention unjust.
These civil actions carry a higher evidentiary burden and narrower relief than divorce proceedings under K.S.A. § 23-2802 or MCA § 40-4-202.
How the Three States Compare on Common Law Marriage Property Division
Colorado, Kansas, and Montana all recognize common law marriage — but they handle property division differently once the marriage is proven.
| Factor | Colorado | Kansas | Montana |
|---|---|---|---|
| Common law marriage statute | ColoradoC.R.S. § 14-2-109.5 | KansasK.S.A. § 23-2502 | MontanaMCA § 40-1-403 |
| Property division statute | ColoradoC.R.S. § 14-10-113 | KansasK.S.A. § 23-2802 | MontanaMCA § 40-4-202 |
| Division system | ColoradoEquitable — marital property only | KansasEquitable — all property divisible | MontanaEquitable — all property divisible |
| Pre-marital property | ColoradoSeparate (but appreciation is marital) | KansasDivisible | MontanaDivisible |
| Inherited property | ColoradoSeparate | KansasDivisible | MontanaDivisible |
| Homemaker contributions | ColoradoListed as a statutory factor — § 14-10-113(1)(a) | KansasListed as a statutory factor — § 23-2802(c) | MontanaListed as a statutory factor — § 40-4-202 |
| Marital misconduct | ColoradoNot a factor | KansasNot a statutory factor | MontanaProhibited from consideration |
| Minimum age | Colorado18 | Kansas18 | MontanaNo statutory minimum (competency required) |
| Required cohabitation period | ColoradoNone | KansasNone | MontanaNone — confirmed by Montana Judicial Branch |
What Happens If One Partner Dies Before the Marriage Is Proven
When one partner in a claimed common law marriage dies, the dispute shifts from divorce court to probate court — and the stakes increase dramatically. The surviving partner must prove the common law marriage existed to claim any spousal inheritance rights, and the deceased partner is no longer available to confirm or deny the marriage.
The same three elements apply: mutual agreement, cohabitation, and public reputation. But the evidentiary burden is harder to meet with only one party alive. Joint tax returns, beneficiary designations, and documentary evidence become critical. Witness testimony from friends and family who understood the couple as married carries more weight when the deceased partner cannot contradict it — but it also cannot be corroborated by the deceased.
If the surviving partner succeeds, they inherit as a legal spouse under the state’s intestacy or elective share statutes. If they fail, they inherit nothing — unless they are specifically named in a will or other estate document.
The Montana Judicial Branch notes that a Declaration of Marriage without Solemnization — a formal document filed with the district court under MCA § 40-1-311 — can serve as proof of the marriage and avoid precisely this problem. Couples in a common law marriage who never file such a declaration leave the surviving partner exposed to a probate challenge from other heirs.
Frequently Asked Questions
Do common law spouses have the same property rights as legally married spouses?
In the states covered here — yes. Once proven, a common law marriage triggers the same property division statutes. Colorado C.R.S. § 14-10-113, Kansas K.S.A. § 23-2802, and Montana MCA § 40-4-202 make no distinction between common law and licensed marriages.
Can a court divide property I owned before the common law marriage?
It depends on the state. Colorado protects pre-marital property as separate under C.R.S. § 14-10-113(2), but appreciation during the marriage is divisible under § 14-10-113(4). In Kansas and Montana, the court can divide all property regardless of when it was acquired under K.S.A. § 23-2802 and MCA § 40-4-202.
How long do you have to live together for a common law marriage?
No state covered in this article requires a minimum period. Common law marriage requires mutual agreement, cohabitation, and public reputation as married — all at the same time. The Montana Judicial Branch confirms there is no specific time requirement.
Does moving to a non-recognition state protect my property from division?
No. Under the Full Faith and Credit Clause and IRS Revenue Ruling 2013-17, a valid common law marriage follows the couple across state lines. The marriage must be dissolved through formal divorce regardless of current domicile.
What happens to property if a common law marriage cannot be proven?
There is no divorce proceeding and no equitable distribution. Property remains with whoever holds title. The non-titled partner may pursue civil remedies such as a partition action under Colorado C.R.S. §§ 38-28-101 et seq. or an unjust enrichment claim — but these provide substantially less protection than divorce court division.
Can I avoid property division by denying the common law marriage existed?
Denial alone does not prevent a court from finding the marriage valid. If the other partner produces evidence — particularly joint tax returns filed as “married filing jointly” — a court can find the marriage existed over one partner’s objection. Joint tax filings carry significant weight because they are sworn federal documents.
Does a common law marriage require a formal divorce to end?
Yes. A common law marriage is a legally recognized marriage in every state that permits it. Separating or moving to another state does not dissolve it. Only a court-ordered divorce formally ends the marriage and its property division consequences.
Are homemaker contributions considered in common law marriage property division?
All three states covered here list homemaker contributions as a factor courts must consider. Colorado includes “contribution of a spouse as homemaker” in C.R.S. § 14-10-113(1)(a). Kansas lists it under K.S.A. § 23-2802(c). Montana requires consideration of “the contribution of a spouse as a homemaker or to the family unit” under MCA § 40-4-202.
