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Common Law Same-Sex Marriages & Divorce in Colorado

Dan Droege

In the summer of 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples.  The decision requires the recognition of the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples. Simply put, there is no difference in how married couples are treated.  For instance, all married couples could benefit from a spouse's health care plan, tax exemptions, etc., not just heterosexual married couples.

In January of 2021, the Colorado Supreme Court Justices explained that a common law same-sex marriage entered in Colorado, before the state recognized same-sex couples’ fundamental right to marry, is a valid marriage.   As Colorado is one a handful of States that recognize common law marriages, this was an important clarification, truly placing same-sex couples on equal footing with heterosexual married couples.   

Determining whether common law marriage exists is looked at on a case-by-case basis – every relationship is unique.

If asked to determine whether a common law marriage exists, a Judge will consider cohabitation, whether the couple told others they were married, joint banking or credit accounts, jointly help property, tax filings, ceremonies, anniversaries.  No one factor decides, but the factors will be considered together. 

Prior to January of 2021, those factors were critical in the Judge’s analysis.   These factors remain important, but the Justices emphasized:

“The key question is whether the parties mutually intended to enter a marital relationship -that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation. In assessing whether a common law marriage has been established, courts should give weight to evidence reflecting a couple’s express agreement to marry. In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct. When examining the parties’ conduct, the factors identified in Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form.”

While this may seem minor – this language is critical to ensure same-sex couples are in fact treated the same as heterosexual couples.  Some of the factors listed may be problematic for same-sex couples. The Colorado Supreme Court directed there must be flexibility in the application of the factors of each case, explaining that same-sex couples may not be fully open about their relationships due to fears of discrimination.  The couple may only discuss their relationship with their inner circle. Also, same-sex couples could not file joint taxes or refer to themselves as married in a majority of situations.  If the factors were the only litmus test to be applied by the Judge, it is likely a majority of same-sex couples would be found to not have a valid marriage as a result of inherent, societal prejudices that prevented them from freely expressing their commitment to their relationship/marriage. 

Once it is determined that a marriage exists, all rights, privileges, obligations and protections apply equally to all divorcing couples.  The issues of parenting time, decision-making, child support, spousal support, debt and property division – will be addressed exactly the same for everyone.

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