Married or common Law Colorado

[questionable]

My divorce is pending in Florida and just learned that my not yet ex wife, who lives in Colorado, claims she has entered into a common law marriage. She has filed her 2006 tax return listing herself as his 'spouse.'
Is this legal ? Is there anything that I can do, and if so who would I report this bigamy situation to ?

[mommyof4]

Common law marriage is recognized and legal in Colorado IF the marriage was entered into after September 2006, both parties are over the age of 18, and the marriage is not a prohibited marriage. Here are the CO statutes for common law marriage, prohibited marriage, and penalties for bigamy. (Sorry, this is alot to read through, but I included the annotations, too....as they provided more in depth information.)

www.law.cornell.edu/topics/state_statutes.html

14-2-109.5. Common law marriage - age restrictions.

Statute text

(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.
History

Source: L. 2006, 1st Ex. Sess.: Entire section added, p. 9, § 2, effective July 18, 2006


14-2-110. Prohibited marriages.

Statute text

(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;
(b) A marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood;
(c) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures.
(2) Children born of a prohibited marriage are legitimate.
History

Source: L. 73: R&RE, p. 1019, § 1. C.R.S. 1963: § 90-1-10. L. 78: (1)(b) amended, p. 262, § 47, effective May 23. L. 93: (1)(a) amended, p. 438, § 4, effective July 1.
Annotations

Cross references: For criminal penalties for the offense of bigamy, see § 18-6-201; for criminal penalties for the offense of incest, see § 18-6-301.
Annotations

ANNOTATION
Annotations

Law reviews. For note, "The Serbonian Bog of Miscegenation", see 21 Rocky Mt. L. Rev. 425 (1949). For article, "The Incestuous Marriage -- Relic of the Past", see 36 U. Colo. L. Rev. 473 (1964). For comment, "Adoptive Sibling Marriage in Colorado: Israel v. Allen", see 51 U. Colo. L. Rev. 135 (1979). For article, "Same Sex Marriages: Should the CBA Take a Position," see 25 Colo. Law. 7 (April 1996).
Putative spouse entitled to legal spouse's right to workmen's compensation. While it is true that a marriage entered into prior to dissolution of a previous marriage is prohibited in Colorado, an innocent party to such a marriage is not deprived of the rights conferred upon a legal spouse. As a putative spouse, upon the other person's death, she acquires the legal spouse's right to workmen's compensation. Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo. App. 1983).
A common law marriage cannot be found where decedent knew that plaintiff was legally married to someone not the decedent at the time the decedent died despite anything decedent may have said regarding an intention to marry plaintiff and plaintiff's acquisition of a retroactive divorce after decedent died. The court will not speculate as to what the decedent might have intended regarding marriage had he been aware of the removal of the legal disability during his lifetime. Crandell v. Resley, 804 P.2d 272 (Colo. App. 1990).


18-6-201. Bigamy.

Statute text

(1) Any married person who, while still married, marries or cohabits in this state with another commits bigamy, unless as an affirmative defense it appears that at the time of the cohabitation or subsequent marriage:
(a) The accused reasonably believed the prior spouse to be dead; or
(b) The prior spouse had been continually absent for a period of five years during which time the accused did not know the prior spouse to be alive; or
(c) The accused reasonably believed that he was legally eligible to remarry.
(2) Bigamy is a class 6 felony.
History

Source: L. 71: R&RE, p. 447, § 1. C.R.S. 1963: § 40-6-201. L. 89: (2) amended, p. 839, § 76, effective July 1.
Annotations

Cross references: For the "Uniform Marriage Act", see article 2 of title 14; for the "Uniform Dissolution of Marriage Act", see article 10 of title 14.
Annotations

ANNOTATION
Annotations

Am. Jur.2d. See 10 Am. Jur.2d, Bigamy, §§ 2, 4, 15-19, 21.
C.J.S. See 10 C.J.S., Bigamy, §§ 2-8.
Law reviews. For note, "The Presumption of Death and a Second Marriage", see 27 Dicta 414 (1950). For article, "Criminality of Voluntary Sexual Acts in Colorado", see 40 U. Colo. L. Rev. 268 (1968).
Annotator's note. Since § 18-6-201 is similar to former C.L. § 6835, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
"Absent" means being away from the home. The word "absent", as used in bigamy statutes, has been regarded as having such confined and technical meaning as it has in the rule regarding the presumption of death. "Absent" therefore means being away from the home or place where one has established a residence. Schell v. People, 65 Colo. 116, 173 P. 1141 (1918).
Remarriage within statutory period is at party's peril. It is the clear intent of this section that one who marries within the period designated by the statute shall do so at his peril. Schell v. People, 65 Colo. 116, 173 P. 1141 (1918).
But death of former spouse or divorce may validate prior marriage. Upon the dissolution of the subsisting marriage by death or by a competent decree of divorce, an intended marriage contracted in good faith by a party thereto prior to the removal of the disability is rendered valid and binding by the continued cohabitation of the parties to such union, as the original intention to become husband and wife, is presumed to continue so as to effectuate a valid common-law marriage. Davis v. People, 83 Colo. 295, 264 P. 658 (1928).
Cohabitation a question for jury. When acts and complicating circumstances are proved, it becomes largely a question for the jury to determine whether there was in fact such continuation as amounted to a living together. People v. Bright, 77 Colo. 563, 238 P. 71 (1925).
The wife is a competent witness against the husband in a prosecution for bigamy. The offense is construed to be a crime against the wife. Schell v. People, 65 Colo. 116, 173 P. 1141 (1918).
Defense of ignorance that former spouse was living must be established by defendant. Clause of this section concerning knowledge that a former spouse is still living constitutes an exception which it is neither for the information to negative, nor for the prosecution in the first instance to disprove. If defendant relies upon the fact that he did not know that his former wife was still alive, he must produce evidence thereof. Magee v. People, 79 Colo. 328, 245 P. 708 (1926).
Spouse held not absent. Defendant deserted his family, leaving them in Nebraska, in 1903, where they continued at their then residence until 1913. Defendant's second marriage occurred in less than two years after the first wife's departure from the former matrimonial domicile. While remaining at such former domicile the first wife was not "absent", within the meaning of this section, and a conviction was affirmed. Schell v. People, 65 Colo. 116, 173 P. 1141 (1918).
Information that follows this section is sufficient. An information which describes the offense in the language of this section, or so clearly that what is charged may be readily understood by a jury, is sufficient. Magee v. People, 79 Colo. 328, 245 P. 708

[questionable]

Sounds like bigamy

Lots to absorb and good information. Sounds to me like it's bigamy, at least to the Federal Government on her 2006 Federal tax return. Without me hiring an attorney, how would you suggest I proceed now? Her common law husband is in the military in Colorado. I have temporary custody of the children here in Florida and want to always keep them here with me.
Thank you for the information.

[stuckinamuck]

The simplest thing to do would be to contact the IRS since really what she did was commit tax fraud.

[cyjeff]

Of course, their first question would be how you came by this information.

[questionable]

Guess it's merely tax fraud

I filed my 2006 return married filing separate, got a message from the IRS that the SSN for my spouse was already in use on another return also listed as a spouse! Changed mine to head of household.
Asked her and she told me. (I know how trustworthy she is so I take her response as an untruth.)

I'll refer to the IRS.

Thanks for your help.