Further, under Colorado law, when a party is unemployed or underemployed, the court can base child support upon that party’s potential income rather than their actual income. See C.R.S. 14-10-115 (5)(b)(I). This is called imputed income, and is used when the court finds that the party is shirking their child support obligation by foregoing a higher paying job. Past employment, education, physical and mental health, and efforts in looking for a better job, are just some of the factors the court can consider in determining whether to impute income on a party. There are some exceptions to imputation however. A Colorado court will not impute income on a party who is caring for a child of the parties and who is under 30 months of age, or who is physically or mentally incapacitated, or who has been sentenced to at least one year of prison. As always, it is good to check with an attorney as to the application of the law to the facts of your case.

If the Petitioner (the one who files for divorce) files a petition against the spouse but is unable to personally serve the spouse with notice of the dissolution, the court can still enter orders dissolving the marriage, disposing of the in-state property, and custody. Why? Because the marriage itself and the in-state property are in rem and the necessary personal jurisdiction can be conferred through publication as long as the court grants the motion for the publication, which generally requires a showing that due diligence has been made to first try personal service. Children involve special jurisdictional rules which allow custodial determinations without personal service under certain circumstances. So, it is possible to get a dissolution of marriage, the children, and the in-state property, without the other spouse ever knowing what happened.

However, personal service is required for any orders which require the spouse to do anything such as pay maintenance, child support and attorneys fees. It is also required for any orders regarding property located out of the state. A couple caveats: First, the spouse could waive any service by simply filing an appearance or answer, or even filing as a co-Petitioner. Second, service on an out-of-state spouse might still not be sufficient if the spouse does not have any contacts with Colorado, such as never having a marital domicile here or never having conceived of a child here.

Common law marriage in Colorado does not have the above formalities and is not recognized by any statute.  However, case law has recognized that parties can become married simply by their actions, even if they never apply for any marriage license. These actions must show that the parties mutually agreed to a marital relationship.  Now usually, the issue of a common law
marriage does not come up until one of the parties wants a “divorce” and the other party disagrees that they were ever married. 

So evidence of a mutual agreement to be married is very important to establishing that a common law marriage exists.  In Colorado, there must be conduct showing a mutual public acknowledgement of the marital relationship to establish a common law marriage.  The reason for the public display requirement is to guard against fraudulent claims of common law marriage. Public acknowledgement of the marital relationship can be shown in part by cohabitation, but more is needed; particularly in this day and age where cohabitation is not taboo as it once was.  There must be 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 joint bank and/or credit card accounts held in each other’s names; purchase and joint ownership
of property; the use of the man’s surname by the woman (or vice versa); the use of the man’s surname by children born to the parties; and the filing of joint tax returns.  There is no specific form that this evidence must take, but rather any evidence to show that the parties openly manifested their desire to be husband and wife will suffice.