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Common-Law Marriage in the Colorado Gay Community: A Legal Perspective


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Many gay couples in Colorado may be wondering about the legal ‘status’ of their current relationships or might be curious about how to plan for future long-term relationships, all in light of the legalization of gay marriage in recent years. Is it possible for gay couples to be ‘Common Law Married’? Could a couple have been common law married prior to the legalization of gay marriage? Do the legal factors that a Court will analyze differ in any way from those of heterosexual common-law marriages?

Common-Law Marriage is a term you may be familiar with but not quite sure of. It is known as a form of legal marriage that is of equal standing in the eyes of the Law as a more ‘traditional’ legal marriage, only in a Common Law Marriage, the Spouses never get a Marriage License or Certificate. Instead, Spouses agree to mutually acknowledge and hold themselves out as being a married couple.

The basic requirements to form a common law marriage are the same as those to form any other marriage, whether homo- or hetero-sexual: 1) each party must be eighteen or older, and 2) the marriage is not bigamous or incestuous.

Beyond the basic requirements, the factors for determining the existence of a Common Law Marriage also include proving to a Judge that the Parties have ‘cohabitated’ (lived together), and that there was a mutual agreement to be married. This second factor is the more complex aspect of the relationship. The Colorado Supreme Court has declared that this mutual understanding to be married can take many forms and does not necessarily require a written or verbal agreement. Rather, for many years, the test to prove such a marriage includes analyzing whether the Parties have shared joint bills and expenses, joint finances and accounts, jointly titled property and debts, shared children, exchanging of rings or vows, holding of a ceremony, and announcing to others that you are a married couple. While no single factor is dispositive, and every relationship is different, the Court often looks to the totality of the circumstances to find whether there was an intent to engage in a Common Law Marriage. Therefore, a combination of several of the above factors can result in the establishment of a Common Law Marriage. However, further analysis is required to then determine approximately when the Marriage ‘officially’ began.

Due to the legalization and increasing commonality of same-sex relationships, in which couples, under the impression that their same-sex relationship previously could not be considered a lawful Marriage under any circumstances (or in some States could even be deemed a criminal act!), often chose not to ‘hold themselves out as a married couple,’ thus undermining what would otherwise have been a legally sufficient Common Law Marriage. As a result, the Colorado Supreme Court has since lessened the importance of the requirements of cohabitation or the couple publicly holding themselves out as married. While those factors are still relevant to show the intent of the parties, they are no longer essential requirements of a common-law marriage. The quintessential case on the issue of same-sex Common Law Marriage is known as: In re Marriage of LaFleur and Pyfer, 201 CO 3 (2021).

As a result of the evolution of modern relationships, both same-sex and hetero, the Court has begun to drift away from the rigid analytical framework under which it operated for the past three decades and instead has now chosen to focus more on the individual evidence on a case-by-case basis. Examples of this include: while changing a name upon marriage is still common, “there may be any number of reasons, including cultural ones, that spouses and children do not take one partner’s name at marriage.” Additionally, maintaining joint finances is not as widespread as it once was, and lower-income families may not even have bank accounts. Property may be titled in just one party’s name due to credit issues, rather than it reflecting an intent to be unmarried. Even the symbols of marriage mean different things to different couples – “Not every expression of commitment to a partner constitutes an agreement to enter into a marital relationship. Nor does every marriage ceremony involve an officiated exchange of vows before family and friends at a place of worship.”

While these newly imposed factors may appear to blur the lines of what exactly determines the existence of a Marriage, and it will take several years to see how the Courts apply these factors into the future, it nonetheless still reaffirms the possibility of forming a Common Law Marriage, which remains a necessary option for certain individuals who are otherwise unwilling or unable to obtain a standard Marriage Certificate. A notable group might be undocumented immigrants who seek to avail themselves of a Marriage without officially registering as much with a government office. The best outline that exists at this point for factors in determining the existence of a Common Law Marriage, regardless of the sex of the Parties, can be found below.

  1. Cohabitation
  2. Reputation in the community as married
  3. Joint bank & credit card accounts
  4. Joint ownership of property
  5. Using the other spouse’s surname for your children
  6. Evidence of shared financial responsibility (lease, joint bills, etc.)
  7. Joint estate planning (wills, powers of attorney)
  8. Insurance beneficiary & emergency contact designations
  9. Symbols of commitment (anniversaries, cards, gifts, rings)
  10. Couple’s labels for one-another
  11. Couple’s ‘beliefs regarding the institution of marriage’
  12. The couple’s behavior when the relationship ended – a common law marriage claim asserted years later is less credible than one asserted more promptly.

Once a Common Law Marriage has been established, the Parties then become entitled to avail themselves of all Rights and responsibilities typically associated therewith. This includes being able to file for Divorce and requesting Court Orders to divide debt and property, and issue a Spousal Maintenance (Alimony) obligation or Child Custody Orders. Please feel free to reach out to our professionals at Colorado’s Harris Law Firm to ask any questions you may have about Common Law Marriage and how it may apply in your particular situation.

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