In re Marriage of Lundin.

2026 COA 35. No. 24CA0264. Common Law Marriage—Assessment of Marital Relationship—Totality of the Circumstances—Affidavit.

May 7, 2026

In 2016, Lundin and Hitchcock began living together in Lundin’s residence. In 2022, Hitchcock filed this action for dissolution of the parties’ alleged common law marriage, relying primarily on the parties’ 2021 “Affidavit of Common Law Marriage.” Lundin moved to dismiss the petition on grounds that the parties weren’t married. Hitchcock moved for summary judgment based on the affidavit. The trial court concluded that, notwithstanding the affidavit, unresolved questions of material fact existed concerning whether the parties were legally married, and it denied the motion. Following a subsequent evidentiary hearing on the issue, the trial court found that the parties lacked the mutual intent to be legally married when they signed the affidavit, based on testimony suggesting that they executed the affidavit to obtain health insurance for Hitchcock’s diabetic son. Other factors, including the nature of the parties’ cohabitation, their lack of a community reputation as spouses, and their lack of joint financial accounts, also weighed against the court finding that a common law marriage existed. Applying Hogsett v. Neale, 2021 CO 1, and two companion cases issued the same day, the court dismissed Hitchcock’s dissolution petition.

On appeal, Hitchcock argued that the trial court erred by concluding that the parties aren’t common law married because it improperly discounted the affidavit, which she maintained was dispositive of the parties’ marital status. The existence of a common law marriage is evaluated by assessing the totality of the circumstances, considering all factors that might show the parties’ agreement, or lack of agreement, to be married. Accordingly, the affidavit by itself could not establish the existence of a common law marriage. Here, based on the totality of the evidence, the trial court found that the parties lacked the mutual intent to be legally married when they signed the affidavit because their subsequent conduct was inconsistent with their agreement to marry as expressed in the affidavit. Further, Hitchcock didn’t argue that the court’s findings lack record support. The trial court thus acted within its discretion by weighing its findings against the affidavit.

Hitchcock also contended that the trial court erred because it considered the wrong time frame when assessing the factors bearing on the existence of a common law marriage. However, the trial court assessed the parties’ conduct after they began cohabitating in 2016 and following their execution of the affidavit in 2021, and it concluded that the parties’ conduct during those critical time frames didn’t support the existence of a common law marriage.

The judgment was affirmed.