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STATE
college library
UNITED STATES DEPARTMENT OF LABOR
MAURICE J. TOBIN, Secretary
WOMEN’S BUREAU
FRIEDA S. MILLER, Director
The Legal Status of Women in the
United States of America
January 1,1948
REPORT FOR
COLORADO
Individual State material, constituting part of a
compilation to show the present legal status of
women in the United States of America
o*.
Bulletin of the Women’s Bureau, No.
157-5 (Revised)
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1949
For sale by the Superintendent of Documents, U. S. Government Printing Office, Washington 25, D. C.
Price 10 cents
SL
THE LEGAL STATUS OF WOMEN IN THE
UNITED STATES OF AMERICA
In response to continuing domestic and international needs, the
Women’s Bureau has prepared a revised edition of its 1938 report on
the legal status of women in the United States of America.
The revised report is based on an examination of the Constitutions,
official statutes, and significant decisions of courts of last resort of the
Federal Government and the several States, as well as pertinent law
texts of recognized authority.
This pamphlet presents a digest of the material compiled for a single
State, which has been incorporated in the complete report.
LETTER OF TRANSMITTAL
United States Department of Labor,
Women’s Bureau,
Washington, April 21,1949.
have the honor to transmit to you a revised report on the
legal status of women in Colorado. This is one of 54 separate reports
constituting a survey of the laws of the 48 States, the District of
Columbia, the Territories of Alaska, Hawaii, and Puerto Rico, and
the United States possessions, the Canal Zone and Virgin Islands.
The original report for each jurisdiction represents a thorough
search of statutes and decisions of appellate courts construing its
statutes or establishing its judicial policy. Revision covers important
changes by legislative action.
The study was made by Sara Louise Buchanan, Attorney on the
Women’s Bureau staff, member of the bars of the Supreme Court of
the United States and of the Mississippi Supreme Court. Valuable
assistance was given in the preparation of the report by Mary Loretta
Sullivan, Associate Economist, and Elizabeth Batson, Editorial As
sistant, both of the Bureau staff.
Respectfully submitted.
Frieda S. Miller, Director.
Hon. Maurice J. Tobin,
Secretary of Labor.
Sir :
I
CONTENTS
A.—CIVIL RIGHTS
I.—CONTRACTS AND PROPERTY
1. Age of Majority.
2. Contractual Powers of Minors.
3. Property Exemptions from Seizure for Debt—Respective Rights
of Men and Women. '
6
4‘ Pr2fteJyM0arrkTied W°man °Wned at Marriage—Ownership
5. Contractual Powers of Married Women.
6. Separate Earnings of Married Woman—Ownership and Control.
7. Liability of Married Woman for Family Necessaries
8. I ormal Procedure Required for a Married Woman to Engage in
a Separate Business.
®
9. Married Woman’s Separate Property-Control During Marnage—Liability for Husband’s Debts.
10. Property Acquired After Marriage Through Cooperative Efforts
of Spouses—Ownership and Control.
11. Damages Recovered for Injury by Strangers to a Married
ControlS PerS°n’ Pr°Perty> °r Character—Ownership and
-L2. Action to Recover Damages for Willful or Negligent Injuries to
the Person or Property of One Spouse by the Other-Respective
^ Rights of Husband and Wife.
13. Competency of Spouses to Testify For or Against Each Other.
14. Disposition of Separate Property by Will—Extent of Married
Vv Oman’s Right.
15. Estate of Deceased Husband or Wife—Share of Surviving Spouse.
16. Provision for the Surviving Spouse During Administration of
the instate.
17. Disinheritance of Husband or Wife by Will of Deceased SpouseSurvivor’s Alternative.
II.—MARRIAGE AND DIVORCE
in trg,e- Consent to Marriage—Men and Women.
1J. Validity of Common-Law Marriage.
20. Health Certificate Requisites Prior to Issuance of Marriage
License—Men and Women.
21. Interstate Cooperation in Marriage Law Enforcement.
2A Grounds lor Marriage Annulment—Respective Availability to
Man or Woman.
J
23. Grounds for Divorce—Respective Availability to Spouses.
VI
CONTENTS
III.—PARENTS AND CHILDREN
24. Services and Earnings of Minor Children—Parents’ Respective
Rights.
.
25. Guardianship of Minor Children—Parents’ Respective Rights.
26. Appointment of Testamentary Guardian for Minor Children
Parents’ Respective Rights.
.
27. Inheritance from an Intestate Child—Parents' Respective Rights.
28. Support of Children Born Out of Wedlock—Parents’ Respective
Responsibility.
, „, , , _. . A
29. Inheritance from Child Born Out of Wedlock Mother s Right.
B.—POLITICAL RIGHTS
30. Domicile of Married Women.
31. Public Office—Eligibility of Women.
32. Jury Service—Eligibility of Women.
THE LEGAL STATUS OF WOMEN IN THE
UNITED STATES OF AMERICA
INTRODUCTION
Any conclusion bearing on woman’s status under the laws of the
United States of America must take into account the common law, on
which the fabric of the Nation’s jurisprudence is woven.
The common-law rules of property sprang from various causes,
notably tradition, military or economic exigency, natural male domi
nance, and the social status of women. Shifts in these have effected
an almost complete overturn in laws governing the property owned
by a woman prior to her marriage and that coming into her individ
ual ownership after her marriage, by gift, inheritance, will, or ac
cumulation from her premarital possessions.
In general, it has been the rule that where specific statutes abrogat
ing common-law principles have not been enacted, the common law
applies. In the century just past, many of the old common-law in
justices to women have been removed by statute. The largest remain
ing area to be reformed to the present-day trend lies in the matter of
ownership and control of property acquired by the cooperative efforts
of husband and wife after ma-rriage.
The material considered centers largely around the woman in the
marriage relation, since the legal status of the unmarried woman is
practically identical with that of the unmarried man, with the excep
tion of the discrimination in some States which bars women from
jury duty; or of distinctions, such as variance between men and women
in the statutory age of majority or age of consent to marriage.
1
COLORADO
SOURCES
Constitution of Colorado.
Colorado Statutes Annotated, 1935.
Code of Civil Procedure, 1935.
Session Laws, 1937, 1939, 1941, 1945, 1947.
Colorado Reports.
Colorado Court of Appeals Reports.
Pacific Reporter.
EXPLANATORY NOTE
References to the State Constitution are indicated by parenthetical
insertions of article and section numbers following the abbreviation
Const., as (Const., art. 7, sec. 6), placed after the related subject
matter.
Code section references are likewise in parentheses, thus (ch. 108,
sec. 1). References to the Code of Civil Procedure are designated as
(Code Civ. Proc., sec. 6).
Session laws are referred to by year of enactment and page number,
as (1937, p. 545).
Case citations, definitely construing statutes or declaring judicial
policy in the absence of express statutory provision, are indicated by
numerical footnote references, and appear immediately after the re
lated paragraphs. Cases showing historical development of a stat
ute or policy are followed by the abbreviation (Hist.).
Subject headings are preceded by numbers, which remain constant
for their respective topics through the entire State series. Cross
references among topics employ these numbers for brevity, as “See
Number 6,” which refers to the subject heading “Separate Earnings of
Married Woman—Owner-ship and Control.”
2
COLORADO
A.—CIVIL RIGHTS
I.—CONTRACTS AND PROPERTY
1. Age of Majority.
In relation to property rights all persons of the age of 21 years are
considered of full age (ch. 176, sec. 82).
2. Contractual Powers of Minors.
Except as to a narrowly limited class of contracts which are valid
and binding on him, an infant’s contracts are voidable, but not void.
His executed contracts are binding until he shows by some act that he
refuses to be bound longer by them, while his executory contracts are
not binding until he has affirmed them after reaching his majority.1
When a minor is absent from home, not under care of a parent or
legal protector, his contracts for necessaries are binding, whether
express or implied. This is true because if such contracts were sub
ject to the general rule and he were deprived of credit, he might be
unable to obtain food or clothing, though possessing the means by
which he could, after a short time, pay for them. This exception is
for the infant’s benefit.2
No assignment of wages or salary by any minor is valid or en
forceable (ch. 97, sec. 226).
As to capacity to make a will, see Number 14.
1 Sipes v. Sipes (1930), 87 Colo. 301, 304 ; 287 Pae. 284
2 Perkins V. Westcoat (1893), 3 Colo. App. 338, 341 ; 33 Pac. 139.3
3. Property Exemptions from Seizure for Debt—Respective Rights
of Men and Women..
Personal Property.
I he wearing apparel of “every person” is exempt from seizure for
debt (ch. 93, sec. 13). One bicycle and one sewing machine, when
owned by “any citizen” of the State, are declared exempt (ch. 93, sec.
15). “Any person being the head of a family and residing with the
same” is entitled to certain articles of personal property enumerated
in the statute, including all wearing apparel of the debtor and his
family, household furnishings, provisions, and fuel within statutory
limits (ch. 93, sec. 14), together with “those articles of personal prop
erty commonly and necessarily used by the different classes of per
sons designated, in carrying on the various avocations by means of
which they obtain sustenance for themselves and families.”1
834408—49-------2
3
4
THE LEGAL STATUS OP WOMEN
In construing the statutes emancipating married women, together
with the exemption laws relating to personal property, the spirit of
the judiciary is shown by these statements:
“* * * It was the manifest intention of the legislature to re
move every disability which coverture had formerly imposed upon
her, so far as her own property and earnings are concerned. As to
these the statute places her upon precisely the same footing with a
feme sole. She may make contracts in reference to her property, carry
on a trade or business, and perform labor and services, on her own
account, sue and be sued in matters pertaining to her property or
business as if she were sole; and her property and its proceeds may be
taken in execution against her. In these matters she is, in the eye
of the law, to all intents and purposes, sole. It certainly was not
the intention of the legislature to place her in a worse position than if
she were unmarried—to invite her to incur liabilities as if she were
sole, but withhold from her the protection extended to unmarried per
sons. On the contrary, it is entirely clear to us that with reference to
the matters specified it was the intention to clothe her with the full
capacity and all the rights of a feme, sole; and among these rights is
the statutory one of the exemption of property from attachment and
execution.
“* * * every incident and privilege attaching to the dominion
of property in the hands of any other person attaches to it in hers.
The right to claim the benefit of the exemption law is both an incident
and a privilege, and she is entitled to assert the right in the manner,
and to the extent, provided in the case of any person not the head of
a family.”2
[The married woman contemplated in the foregoing is one living
with her husband but doing business in her own name or dealing with
her separate property.]
_
_
Exemption is available, without discrimination as to sex, to “any
mechanic, miner, or other person not being the head of a family,”
covering the tools, implements, working animals, books, and stock in
trade, not exceeding $300 in value, used and kept for the purpose of
carrying on the debtor’s trade or business, as long as the person
is a bona fide resident of the State (ch. 93, sec. 14, 3rd proviso) .3
Wages.
•
Any debtor who is the head of a family, or the wife of the head of
the family, and whose family resides in the State and is dependent
wholly or partially upon the debtor’s earnings for support, is entitled
to hold exempt from levy under execution or attachment or garnish
ment. 60 percent of the amount due him or her at the time levy is made;
or if such wages or earnings do not exceed $5 per week at the time of
the levy, all of them are exempt (ch. 93, sec. 16).
So long as the wages or earnings are identifiable, even though de
posited by the debtor in a bank, he or she is entitled to have them
exempt according to the terms and provisions of the statutes.4
Pension money from the Federal Government received by any per
son, resident of the State, whether in actual possession of such pen
sioner, or depQsited or loaned by him, is exempt, whether he is the head
of a family or not (ch. 93, sec. 17).
When the head of a family dies, deserts, or ceases to reside with the
family, the statutory exemption allowed to such head continues to the
COLORADO
5
family itself (ch. 93, sec. 19). In a case of desertion by the husband,
a bankrupt, his wife as the remaining portion of the family was held
entitled to the benefits of this statute, though generally a person resid
ing alone is not a family.5
Homestead.
Every householder in the State who is the head of a family is entitled
to a homestead exemption not exceeding $2,000 in value (ch. 93, sec.
23) as long as the owner, or his or her family, occupies the property
as such homestead (ch. 93, sec. 25). The homestead is not limited in
area, whether urban or farm property, if the value does not exceed
$2,000 (ch. 93, sec. 27).
Formal entry of the homestead must be made by the owner with the
clerk and recorder of the county in which the property is located, as
prescribed by law. If either husband or wife owning the homestead
fads to make the entry, the other spouse may do so (ch. 93, sec. 24).
The widow or surviving husband, or minor children, of any person
who dies in possession of a homestead, is entitled to the homestead
(ch. 93, sec. 26).
. I o convey or encumber a homestead, both husband and wife must
join in the conveyance or encumbrance of their respective interests
(ch. 40, sec. 119).
1 Watson v Lederer (1888), 11 Colo. 577, 581 ; 10 Pac. 602 ; 2 A. L. R. 831 note
Scotty. Mills (1895), 7 Colo. App. 155, 157 ; 42 Pac. 1021
'
. Martin v. Bond (1890), 14 Colo. 466, 475 : 24 Pac. 326 ; 9 A. L. R. 1261 note
* Rutter v. Shumway (1891), 16 Colo. 95, 98; 26 Pac. 321
’
0 In re Youngstrom (1907), 153 Fed. 98, 105.
'
4. Property of Married Woman Owned at Marriage—Ownership
After Marriage.
The property, real and personal, which any woman in the State may
own at the time of her marriage, as well as the rents, issues, profits,
and proceeds from it, continues to be her sole and separate property
after her marriage, and is not subject to her husband’s disposal nor
liable lor his debts (ch. 108, sec. 1).
5. Contractual Powers of Married Women.
A woman may, while married, execute any bond, bill, promissory
note, or other instrument in writing, for the direct payment of money
(ch. 108, sec. 9). She may bargain, sell, and convey her real and
personal property, and make any contract in reference to it as if
unmarried (ch. 108, sec. 10).
Either husband or wife may convey property directly to the other.1
Ihe wife may contract debts in her own name and upon her own
credit; she may execute promissory notes, bonds, bills of exchange,
and other instruments in writing, and may enter into any contract the
same as if she were sole; and execution or other legal process under
judgment against her may be enforced against her as if she were
unmarried (ch. 108, sec. 11).
A married man who is the head of a family residing in the State
can make no valid assignment of his wages or salary without the
written consent of his wife in legal form (ch. 97, sec. 225).
No married person residing with wife or husband can make a valid
assignment of Ins or her wages not already earned or of any sum
6
THE LEGAL STATUS OF WOMEN
to become due the assigner after date of assignment, without the
joinder and signature of the other spouse (ch. 97, sec. 233).
The court has said regarding the status of married women':
“* * * By sundry legislative acts, dating from an early period,
the disabilities of coverture have been gradually removed in Colorado,
and these acts have been so liberally construed by the courts that con
troversies respecting the status of married women have practically
disappeared from our jurisprudence.”2
And again:
“* ■ * * * In 'Whyman v. Johnston, 62 Colo. 461, 163 Pac. 76,
we said that the fiction of one legal personality no longer exists. One
has but to read the statutes of the State and the decisions of this
court and of the Court of Appeals to realize that in the present state
of the law the so-called unity of husband and wife is a mere figure
of speech no longer having any practical significance.” 3
_
In all cases where an administrator of an estate is to be appointed,
the husband or widow has preference for appointment, if wulling and
qualified to serve. But application for such appointment must be
made within 20 days from the death of the intestate (ch. 176, sec. 74).
1 Wells v. Caywood (1877), 3 Colo. 487, 494 ; 49 A. L. R. 122, note.
2 Williams v. Williams (1894), 20 Colo. SI, 56 ; 37 Pac. 614.
8 Hedlund v. Hedlund (1930), 87 Colo. 607, 609 ; 290 Pac. 285.
(Hist.)
6. Separate Earnings of Married Woman—Ownership and Control.
Any married woman may carry on any trade or business, and per
form any labor or services, on her sole and separate account, and the
earnings of any married woman from her trade, business, labor, or
services are her sole and separate property, and may be used and in
vested by her in her own name. She may sue and be sued as if un
married, in regard to her trade, business, labor, services, and earnings,
and her property acquired through these channels and the proceeds
thereof may be taken on any execution against her (ch. 108, sec. 3).
“The right of a married woman to the proceeds of her own labor,
under this statute, cannot be doubted. The language of the act is
clear and explicit, and the husband is deprived of all interest in the
labor of his wife, rendered to third persons. * * * The highest
claim to the fruits of labor is vested in him who performs it, and none
other need be asserted.”1
But while these provisions, together with those empowering a
married woman to sue and be sued as if single in all matters having
relation to her property, person, or reputation, have relieved a married
woman from many of the disabilities imposed under the common law,
they have not abrogated all the common-law relations of husband
and wife.2
i Allen v. Eldridge (1871), 1 Colo. 287, 289.
1 Denver cC- Rio Grande R. R. Co. v. Young (1902), 30 Colo. 349, 351 ; 70 Pac. 688.
7. Liability of Married Woman for Family Necessaries.
Any married woman may contract debts in her own name and upon
her own credit, and is liable under such contracts as if unmarried (ch.
108, sec. 11). The expenses of the family and the education of the
children are chargeable upon the property of both husband and wife,
or either of them, and in relation to such liability they may be sued
jointly or separately (ch. 83, sec. 10). However, this joint liability
COLORADO
7
does not apply when the parties are not living together as a family
in fact.1
A man who fails to support his wife and children (legitimate or
illegitimate) as provided by law, except for physical disability or
other good cause, may be convicted of felony (ch. 83, sec. 1).
1 Denver Dry Goods Co. v. Jester (1915), 60 Colo. 290, 291 ; 152 Pac. 903 ; L. R. A.
1917A, 957.
8. Formal Procedure Required for a Married Woman to Engage in
a Separate Business.
No court decree or formal consent of the husband is made requisite
to a married woman’s engaging in a separate business. See Number
6. And it has been held that a married woman need not declare her
intention to appropriate to her own use the proceeds of her labor in
order to protect her right to them.1
1 Allen v. Bldridge (1871), 1 Colo. 287, 289.
9. Married Woman’s Separate Property—Control During Mar
riage—Liability for Husband’s Debts.
The property, real and personal, which any woman in this State may
own at the time of her marriage, and the rents, issues, profits, and
proceeds from it, and any property received by her by inheritance,
under a will, or as a gift from any person except her husband, remain
her separate property during the marriage, and such property is not
subject to the husband’s disposal nor liable for his debts. The statute
includes as the wife’s separate property certain classes of gifts from
her husband, as jewelry, silver, tableware, watches, money, and wear
ing apparel (ch. 108, sec. 1),
The separate deed of the husband can convey no interest in the wife’s
lands (ch. 108, sec. 8).
Under the statute, the wife holds an absolute legal estate as free
from the common-law rights of her husband as if she were unmarried;
as to her separate estate she has no husband.1
The common-law estate of tenancy by entireties, covering convey
ances to husband and wife, does not exist under Colorado statutes,
which have changed the relative property rights of husband and wrife.2
1 Palmer v. Hanna (1881), 6 Colo. 55, 63.
2 Why mam v. Johnston (1917), 62 Colo. 461, 463; 163 Pac. 76.
10. Property Acquired After Marriage Through Cooperative Ef
forts of Spouses—Ownership and Control.
Under the statute, a married woman may carry on any trade or
business and perform any labor or services on her sole and separate ac
count, and the earnings from these sources are her individual property
(ch. 108, sec. 3). However, while these provisions have relieved a
married woman from many disabilities imposed under the common
law, they have not abrogated all the common-law relations of husband
and wife. She is still required to perform the usual and ordinary
household duties. For services of this character she is not entitled
to any monetary compensation from her husband. Her services on
this account belong to him.1
The duties of the wife, as wife, form the consideration for the hus
band’s liability for her maintenance.2
8
THE LEGAL STATUS OF WOMEN
As to the husband, property procured by him with money he has
earned after marriage is his separate property.3
The statute gives a married woman as her separate property that
which she has at marriage, that which comes to her during marriage
by inheritance or under will, or by gift as a general rule, and such as she
acquires in her trade or business. But in the absence of evidence to
show the separate ownership of the wife, the law presumes personal
property and household articles to be owned by the husband where
the husband and wife are living together in full enjoyment of marital
rights, as there is nothing in the statute to change this common-law
rule.4
1 Denver & Rio Grande R. R. Co. v. Young (1902), 30 Colo. 349, 351; 70 Pae. 688.
-Denver Dry Goods Co. v. Jester (1915), 60 Colo. 290 ; 152 Pae. 903.
1 Hedlund v. Hcdlund (1930), 87 Colo. 607, 610 : 290 Pac. 285.
* Allen v. Eldridge (1871), 1 Colo. 287, 290.
11. Damages Recovered for Injury by Strangers to a Married
Woman’s Person, Property, or Character—Ownership and
Control.
“Courts of justice shall be open to every person, and a speedy remedy
afforded for every injury to person, property, or character; * *
(Const., art. 2, sec 6). Any woman may, while married, sue and be
sued, in all matters having relation to her property, person, or repu
tation, in the same manner as if she were sole (ch. 108, sec. 2). A
married woman may sue and be sued in all matters, the same as if she
were sole (Code Civ. Proc., sec. 6).
The court has said that this section of the Constitution guarantees
the wife a remedy for every personal injury without making any
exception as to the person inflicting the injury, who may be her hus
band or a third person, and that under the statutes quoted there is
no exception as to the person she may sue.1
1 Rains v. Rains (1935), 97 Colo. 19, 24 ; 46 Pac. (2d) 740.
12. Action to Recover Damages for Willful or Negligent Injuries
to the Person or Property of One Spouse by the Other—Re
spective Rights of Husband and Wife.
See Number 11.
13. Competency of Spouses to Testify For or Against Each Other.
Neither husband nor wife can be examined as a witness for or against
the other without the consent of such other spouse. Neither can hus
band or wife, during the marriage or afterward, be examined without
the consent of the other as to any communications made by one to the
other during the marriage. However, this exception does not apply
to a civil action or proceeding by one against the other, nor to a crimi
nal action or proceeding for a crime committed by one against the
other (ch. 177, sec. 9). In proceedings or prosecutions under the non
support statutes [ch. 83] the wife is made a competent witness against
the husband, with or without his consent (ch. 83, sec. 5).
14. Disposition of Separate Property by Will—Extent of Married
Woman’s Right.
Every person of sound mind and memory may dispose of his or
her estate of every kind, if 18 years of age (1947, p. 947). See Num
ber 17. '
’
COLORADO
9
15. Estate of Deceased Husband or Wife—Share of Surviving
Spouse.
Dower and tenancy by curtesy are abolished, and neither husband
nor wife has any share in the estate of the other upon the death of
one intestate except that provided by statute. Under the statute, the
real and personal property of an intestate person who leaves a surviv
ing husband or wife, descends and is distributed absolutely, after pay
ment of debts, one-half to the husband or wife and the residue to any
surviving children or their descendants; or if no children or their
descendants survive, the living spouse takes the entire net estate ab
solutely (ch. 176, sec. 1).
16. Provision for the Surviving Spouse During Administration of
the Estate.
Upon application of a widow, she is to be allowed from her hus
band’s estate as her sole and separate property $2,000 in cash, or at
her election an equivalent value in real or personal property and cash,
or portions of each class of property including cash, up to the aggre
gate value of $2,000. If the decedent leaves a widow and a minor
child or children, the stepchild or children of such widow, the allow
ance to the widow is limited to $1,000 in value, the balance of $1,000
of the statutory allowance being reserved to the exclusive benefit of
such child or children, in the hands of their legal representative. If
the decedent is a woman, who leaves a minor child or children whose
male parent is not living or is divorced from the decedent or has
deserted her and the child or children, such child or children are
entitled to the same rights of allowance from her estate as a widow
would be allowed, to be paid to their guardian or next friend; and
such allowance from the widow’s estate to the children is not subject
to seizure for any debt or liability of the decedent (ch. 176, sec. 211).
The widow may have waived her right to the claim by express agree
ment.1 2 The court observes in the Brimble case:
“* * * we should remember that this alienation is not a mere
peril against which the widow should be protected, but a privilege by
which she may, in her husband’s lifetime, secure something of value
in exchange for what, unless she survives him, will never exist.”
This allowance, after its award by the court to the widow, is subject
to garnishment for her debts.3
As to the question of exemption of this allowance from garnish
ment on the ground of public policy, raised in this case, the court
remarks that whatever the public policy may be, the express terms
of the statute must control, and that the policy in such case is for the
consideration of the legislature, not the courts. See Number 3.
Residence in the State is required of the widow or orphans who
choose to avail themselves of the benefits of the statute [ch. 176, sec.
211], if the property is within the State; but the decedent need not be
a resident at the time of death.4
10
THE LEGAL STATES OF WOMEN
This allowance to a widow is independent of her distributive share
in her husband’s estate.5
1 Vincent v. Martin (1932), 91 Colo. 106, 108 ; 11 Pac. (2d) 1089.
2 Brimble v. SicUer (1928), 83 Colo. 494, 497; 266 Pac. 497.
3 IstellKent-Oakes Dry Goods Co. v. Larimer County Bank <£ Trust Co. (1924),
75 Colo. 451, 453 ; 226 Pac. 293.
< In re Madril’s Estate (1922), 71 Colo. 123 ; 204 Pac. 483.
6 Wilson v. Wilson (1913), 55 Colo. 70, 72 ; 132 Pac. 67.
17. Disinheritance of Husband or Wife by Will of Deceased
Spouse—Survivor’s Alternative.
When either husband or wife wills away from the surviving spouse
more than one-half of his or her property or estate, such surviving
spouse has the right to elect whether to accept the provisions of the
will or to take, notwithstanding the will, one-half of the property
or estate both real and personal. But if he or she rejects the will,
such election must be filed in written form in the county court where
the will is probated, within 6 months from the time the will is ad
mitted to probate (ch. 176, sec. 37).
Joint tenancies in personal property are not destroyed by will or
any testamentary disposition (1941, p. 594).
II.—MARRIAGE AND DIVORCE
18. Age of Consent to Marriage—Men and Women.
All marriages wherein either party is under the age of 18 years are
declared to be voidable (ch. 56, sec. 33).
If the male is under the age of 21 years or the female under the
age of 18 years, a license to marry cannot be issued unless the written
consent, verified under oath, of the parent or parents or guardian
of the person under age, be filed as part of the application for the
license. Such application must be under oath, also, and show actual
ages of parties to the intended marriage, if either is under the age
or consent (ch. 107, secs. 5-6). A judge of a court of record may order
license to issue upon hearing of the facts, when license has been re
fused by the clerk or extraordinary circumstances are shown to exist
which justify a waiver of statutory requirements in the court’s opinion
(ch. 107, sec. 10).
Marriage is prohibited between persons either of whom is under 16
years of age. Any such marriage is void unless approved by a court
decree (1945, p. 478).
19. Validity of Common-Law Marriage.
The law of Colorado recognizes the validity of common-law mar
riages.1
•
A marriage simply by agreement of the parties, followed by co
habitation as husband and wife, and such other attendant circum
stances as are necessary to constitute what is termed a common-law
marriage, may be valid and binding.2
1 Clayton Coal Co. V. Industrial Com. (1933), 93 Colo. 145; 25 Pac. (2d) 170.
2 Klipfel’s Estate v. Klipfel (1907), 41 Colo. 40, 46; 92 Pac. 26; 39 A. L. E. 538,
note.
.
20. Health Certificate Requisites Prior to Issuance of Marriage
License—Men and Women.
Each applicant for license to marry must file a physician’s certifi
COLORADO
11
cate with the licensing official, showing that in the opinion of the
physician, the applicant either is not infected with syphillis and other
venereal diseases, or is not in a stage of infection which may become
communicable. The physician’s certificate must be based upon a pre
scribed examination and standard serological test given within 30
days prior to the date license is issued.
No marriage may be performed unless the required certificate is at
tached to the marriage license.
Exception may be granted to these requirements only upon written
consent of the State Board of Health, when it finds that license to
marry has been refused but that it is advisable under existing circum
stances to authorize the marriage, with temporary waiver of certifi
cate during a treatment period (1939, p. 455).
21. Interstate Cooperation in Marriage Law Enforcement.
All marriages contracted outside the State, which are valid by the
laws of the country where contracted, are valid in Colorado courts, but
nothing in this provision is to be construed so as to allow bigamy or
polygamy in the State (ch. 107, sec. 4).
22. Grounds for Marriage Annulment—Respective Availability to
Man or Woman.
Marriages within prohibited degrees of kindred, that is, between
parents and children, including grandparents and grandchildren of
every degree, between brothers and sisters of the one-half as well as
of the whole blood, and between uncles and nieces, aunts and nephews,
are declared to be incestuous and absolutely void. Also all marriages
between Negroes or mulattoes, of either sex, and white persons, are
declared to be absolutely void. The provisions of this statute are not
to be so construed as to prevent the people living in that portion of
the State acquired from Mexico from marrying according to the cus
tom of that country (ch. 107, sec. 2).
All marriages wherein either party is under the age of 18 years are
declared to be voidable (ch. 56, sec. 33).
Action for annulment may be maintained for non-age, provided the
party seeking annulment is under the age of 19 years at the time suit
is begun; also, “in such other cases as are recognized in equity” (ch.
56, sec. 34).
A cause of action for annulment may be combined with a cause of
action for divorce, and upon the trial in such cause the court will award
the relief to which the party or parties may be entitled (ch. 56, sec.
35). See Number 23.
23. Grounds for Divorce—Respective Availability to Spouses.
Any marriage may be dissolved and a divorce granted for any one
or more of the following named reasons, and for no other cause:
(«) On complaint of the aggrieved spouse—
(1) Impotency at marriage, or occurring in consequence of im
moral conduct committed after marriage.
(2) Living spouse, not divorced, at the time of the marriage.
(3) Adultery since marriage.
(4) Willful desertion without reasonable cause for at least 1 year
immediately preceding divorce action.
12
THE LEGAL STATUS OF WOMEN
(5) Extreme and repeated cruelty, whether mental suffering or
bodily violence.
(6) Habitual drunkenness or drug addiction for at least 1 year im
mediately preceding action for divorce.
(7) Conviction of a felony in a court of record in any State after
marriage (ch. 56, sec. 1).
(8) Incurable insanity, at a date at least 5 years prior to divorce
action, without subsequently adjudged sanity, which cause must be
strictly proved, as prescribed by statute. No husband who is granted
a divorce on this ground is relieved thereby from his liability for sup
port of such divorced spouse (ch. 56, sec. 2).
(b) On complaint of the wife—
(1) Husband’s failure, though in good bodily health, to make rea
sonable provision for family support for at least 1 year immediately
preceding the divorce action (ch. 56, sec. 1).
Grounds for Separate Maintenance.
An action may be maintained by a wife for separate maintenance
(divorce from bed and board) : (a) Upon any ground provided by law
for divorce; (b) where she has been abandoned by the husband with
out just cause or excuse, and a reconciliation is not probable, and such
relief appears just or proper; or (c) upon any ground generally rec
ognized in equity (ch. 56, sec. 25).
Residence Required.
Except as to divorce actions on the grounds of adultery or extreme
cruelty, whether the offense was committed within the State, no person
may be granted a divorce unless he or she has been a bona fide resident
and citizen of the State during the 1 year immediately preceding the
filing of the suit (ch. 56, sec. 6).
In the 6-month period following the court’s interlocutory decree
providing for a divorce to be granted at the end of that period, the
parties to the marriage are not divorced, and neither may contract
another marriage (ch. 56, sec. 13).
.
When Woman May Sue Without Costs.
Any woman suing for a divorce, who shows the court that she is
poor and unable to pay the expenses of the suit, is to be allowed by the
court to prosecute her suit without costs and in such cases no fees are
to be charged by the officers of the court (ch. 56, sec. 21).
*
III.—PARENTS AND CHILDREN
24. Services and Earnings of Minor Children—Parents’ Respec
tive Rights.
Apparently the common-law rule is followed, and the father is en
titled to receive the earnings of his minor child, unless he has released
the child from this obligation to him. Note the application of this
rule in Pawnee Co. v. Powell (1924), 76 Colo. 1, 7; 227 Pac. 836; 37
A. L. R. 6.
However, a father and mother or the sole surviving parent may.
maintain an action for the injury or death of a child; and where father
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13
and mother maintain the action, each shall have an equal interest in
the judgment (Code Civ. Proc., sec. 9).
See also Number 7 as to joint liability of parents for family neces
saries, and Number 26 as to married woman’s right as joint guardian.
25. Guardianship of Minor Children—Parents’ Respective Rights.
When a minor having a father living, or a mother and no father
living, is entitled to or possessed of any estate, real or personal, the
county court must notify the father or mother, as the case may be, to
appear and show cause why a guardian of the minor’s estate should
not be appointed, unless such father or mother is the petitioner for the
appointment of guardian. If sufficient reason be, not shown, the court
may appoint such father or mother, if he or she be a proper person; if
not, then the court will appoint some other person, as provided by
statute (ch. 176, sec. 83).
26. Appointment of Testamentary Guardian for Minor Children—
Parents’ Respective Rights.
Every married woman is constituted and declared to be the joint
guardian of her children with her husband, having equal powers,
rights, and duties in regard to them. Upon the death of either father
or mother, the surviving parent, whether of full age or a minor, of a
child likely to be born or of a child under, the age of 21 years and un
married, may dispose of the custody and tuition of such child during
its minority, or for any less time, to any proper person, by deed or
last will duly executed (ch. 76, sec. 3).
27. Inheritance from an Intestate Child—Parents’ Respective
Rights.
If a person dies intestate, leaving neither spouse nor descendants,
his real and personal estate after payment of debts is taken by his
father and mother share and share alike; if either parent be dead, the
survivor takes the entire net estate (ch. 176, sec. 1).
28. Support of Children Born Out of Wedlock—Parents’ Respec
tive Responsibility.
The bastardy act provides for determining by jury trial the patern
ity of a child born out of wedlock, on complaint of the mother before
the child is 12 months old. If the jury finds the complaint true, they
may assess such damages against the adjudged father as they may
think proper, directing payment annually or otherwise for any term
of years not exceeding 18, and the court must render judgment ac-'
cordingly. Payments are recoverable under execution, issued upon
the judgment. A fair proportion of the sum so recovered must be
appropriated to the support, maintenance, and education of the child.
If the mother does not prove her case, she is taxed with the costs of
the suit (ch. 20, secs. 1-6).
The nonsupport statute provides that any man who willfully neg
lects, fails, or refuses to provide reasonable support and maintenance
for his illegitimate child or children under 16 years of age, or who will
fully fails, refuses, or neglects to provide proper care, food, and
14
THE LEGAL STATUS OF WOMEN
clothing in case of sickness for such illegitimate child or children, or
the mother of his illegitimate child during childbirth and attendant
illness, istdeemed guilty of a felony, and upon conviction is subject
to imprisonment in the penitentiary for 1 year or less, except it be
shown that he is unable to furnish the required support, due to physical
incapacity or other good cause (ch. 83, sec. 1).
Under this statute, an alleged father of an illegitimate child, in any
case where the child is under 16 years of age, may be prosecuted for
failure to support it, without having been adjudged, in some prior
proceeding, to be such father.1
1 Wamsley v. People (1018), 64 Colo. 521 ; 173 Pac. 425.
.
29. Inheritance From Child Born Out of Wedlock—Mother’s Right.
• I’l'eJ’,'0perty
any bastard or illegitimate person, dying intestate
m the State and leaving an estate therein, passes to the surviving spouse
and/or children as would the property of any other person. ("See
Number 15.) But if no spouse or children survive the illegitimate
person, the mother takes one-half the estate and her children and their
descendants take the other half (ch. 176, sec. 11).
B.—POLITICAL RIGHTS
30. Domicile of Married Women.
In the absence of affirmative evidence to the contrary, the wife’s
domicile is presumed to merge in that of the husband; she is presumed
to live with her husband in his home.1
Voting Qualifications of Women.
The election law provides that every female person shall be entitled
to vote at all elections, in the same manner in all respects as male
persons are or shall be entitled to vote by the constitution and laws of
this State, and the same qualifications as to age, citizenship, and time
of residence in the State, county, city, ward, and precinct, and all
other qualifications required by law to entitle male persons to vote,
shall be required to entitle female persons to vote (ch. 59, sec. 13).
Qualifications of Voter.
Every person over 21 years of age, a citizen of the United States,
who has resided m the State 1 year immediately preceding the election
at which he offers to vote, in the county 90 days, in the city or town
30 days, and in the ward or precinct 10 days, is entitled to vote at all
elections (1937, p. 545).
Distinction Between Residence and Domicile.
. The distinction between mere residence and domicile must be borne
m mind. The former is used in law to denote that a person dwells in
a given place; the latter is the legal home of a person, or that place
where the law presumes that he has the intention of permanently
residing, although he may be absent from it. When one has acquired
a domicile, he must abandon it before he can gain another. To effect
such a change, there must be both act and intention; in other words,
there must be a severance from the old place, with the intention of
uniting with the new one, and these must concur. A mere change of
COLORADO
15
residence is not sufficient to acquire a domicile elsewhere, unless it is
intended to be permanent. The mere personal presence of a person
otherwise qualified in a voting precinct for the period required by law,
does not necessarily constitute such person an elector, unless he hae
moved in with the honest and settled intention of acquiring a new
domicile.2
1 Colorado Fuel and Iron Co. v. Industrial Com. (1933), 93 Colo. 188; 24 I’ac.
(2d) 1117.
2 Jain v. Bossen (1900), 27 Colo. 423, 425, 426, 427 ; 62 Pac. 194.
31. Public Office—Eligibility of Women.
No person except a qualified elector shall be elected or appointed to
any civil or military office in the State (Const., art. 7, sec. 6) (ch. 59,
sec. 16). The early case of Jeffries v. Harrington (1887), 11 Colo. 191,
193, 17 Pac. 505, illustrates the liberal attitude of the State in the
matter of women in appointive positions wherein the court said, ruling
favorably on the appointment of a woman as deputy clerk of a county
court—
“* * * We do not think it was the intention of the framers of '
our constitution to declare such avenues of employment closed to
women, and until some clear expression to that effect has been made
by constitutional or legislative provision, the courts should not declare
against the employment of women in such positions.”
32. Jury Service—Eligibility of Women.
Women are eligible for jury duty on the same terms as men. Exemp
tion may be allowed to any person whose presence, in the opinion of
the presiding judge, is necessary for the care of other persons, or on
whom jury duty would cause undue hardship, or who has requested
relief from duty for other good cause.
Exemption may be granted also to members of a religious sisterhood
of any denomination who are following their profession (Const., art.
II, sec. 23, as amended; 1945, pp. 424, 426).
o
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