A Garfield County couple’s signed, notarized document attesting to their common law marriage does not mean they were actually married, Colorado’s second-highest court ruled last week.

In contrast to a formal, licensed marriage, Colorado recognizes common law marriages between two people who mutually agree to enter into a marriage and then engage in conduct reflecting that agreement.

Five years ago, the Colorado Supreme Court updated its framework for assessing whether a common law marriage exists and, therefore, whether it is subject to dissolution. The court identified factors that could indicate an intent to live in a marriage, including cohabitation, joint banking and credit accounts, joint ownership of property, and “symbols of commitment.”

In October 2022, Rochelle Hitchcock petitioned to dissolve the common-law marriage between herself and Kurt Lundin. As evidence of a marriage, Hitchcock pointed to a document labeled “Affidavit of Common Law Marriage” signed by both parties in 2021.

“We have lived together continuously, in Colorado, as husband and wife from 9/16/16 to the present,” the document read. “We hold ourselves out to the community as husband and wife, consent to the marriage, cohabit and have a reputation in the community as being husband and wife.”

Hitchcock and Lundin also attested that their common law marriage would be “valid for all purposes” and “can only be terminated by death or divorce.” They signed it with a notary as a witness.

After a hearing in which then-Chief Judge John F. Neiley heard from several friends and family members of Hitchcock and Lundin, he concluded that no common law marriage existed.

Neiley explained that under the Supreme Court’s framework, there must be conduct furthering the marriage in addition to the affidavit itself. The witness testimony illustrated that several of Lundin’s friends and relatives did not believe the couple to be married, and the relationship was “essentially platonic rather than intimate.” There was no joint property and almost no joint finances.

As for the 2021 signed affidavit, the evidence showed that Hitchcock was concerned about her child’s insurance coverage ending in 2022. Getting coverage was “a big part of their decision” to sign the document, wrote Neiley, as the “only viable option” was to get the child on Lundin’s insurance.

Therefore, “the court finds under the totality of the circumstances, that the Affidavit does not reflect the mutual intent of the parties to become married under common law. Instead, the court finds that the Affidavit was used as a vehicle by the parties to obtain health insurance,” wrote Neiley in dismissing Hitchcock’s petition to dissolve the marriage.

A three-judge Court of Appeals panel agreed that the purported common law marriage agreement did not establish a marriage on its own.

“To begin, we understand Hitchcock’s confusion, as the requirements for establishing a common law marriage are undoubtedly complex,” wrote Judge Craig R. Welling in the May 7 opinion, reiterating that such a marriage requires both mutual agreement and sharing a life as spouses.

“Here, however, the trial court assessed the parties’ conduct following their commencement of cohabitation in 2016 and following their execution of the affidavit in 2021, with the court concluding that the conduct during both of those critical timeframes didn’t support the existence of a common law marriage,” he wrote for himself and Judge W. Eric Kuhn.

Judge Timothy J. Schutz wrote separately. He stressed that no one was accusing Hitchcock and Lundin of committing fraud by signing the 2021 health insurance affidavit.

“But I also note that the parties’ failure to raise the potential fraud issue is predictable because if they had done so, they risked the trial court making a finding that one or both of them had committed fraud,” he wrote.

Instead, Schutz warned that the Supreme Court’s updated framework for establishing a common law marriage was a bizarre fit for the conduct in Hitchcock and Lundin’s case. Specifically, the Supreme Court had not contemplated a relationship with a signed, notarized affidavit committing both people explicitly to a common law marriage.

“Thus, the result we reach,” Schutz wrote, “tolerates a situation in which both parties achieved a financial benefit by making a sworn representation that at least Lundin knew to be false, because — according to his testimony — he did not intend to be married.”

He advocated for the Supreme Court to re-examine its framework to prevent potentially “fraud-adjacent” agreements between couples from being used as unchallenged evidence in future proceedings.

“Addressing the fraud-related issues would not only strengthen the foundations of common law and statutory marriages, it would also discourage fraudulent conduct,” Schutz concluded.

The case is In the Marriage of Hitchcock.