This is a Complicated Question (with significant implications)

If you have been in a long-term relationship with someone of the same sex and you decide to go your separate ways, you may be legally obligated to pay spousal support and your partner may be entitled to marital assets even if you never married. Alternately, you may be legally entitled to spousal support and marital assets. Surprised? You’re not alone.

Same-sex marriage becoming legal in Colorado in 2014 and the passage of the Colorado Civil Union Act the prior year have ushered new opportunities and obligations—and likely some confusion--for same-sex couples in Colorado. Then this past December, the Colorado Court of Appeals ruled in In re Marriage of Hogsett that same-sex couples have the right to retroactively establish a common law marriage, adding more for same-sex couples to contemplate when they navigate the divorce process.

What might this mean for you? In this article I will clarify some key issues as they stand today that may apply to you or others you know who are considering dissolving long-term, same-sex partnerships.

New questions have arisen for same-sex partners as a result of same-sex marriage becoming legal.

Perhaps you have friends who dissolved their same-sex union years ago and in the process of doing so, came to their own agreements as to how to divide jointly-owned property and how they would support themselves once separated. They reached agreements independent of the court process because laws governing property division and spousal alimony didn’t apply to them.

Prior to the 2013 passage of the Colorado Civil Union Act, one member of a same-sex couple who was concerned about having sufficient resources to support himself or herself following the dissolution of the partnership could not seek an award of spousal maintenance absent an agreement between the couple themselves.

Similarly, a same-sex couple who purchased a house together would have had to enter into their own agreement about how the equity in their home would be divided in the event they parted ways. If they didn’t do this in advance and couldn’t come to an agreement, they might pursue a contract action through the court.

Neither party to the partnership would have been entitled to any increase in value during the years of the partnership of the other’s separate property, such as a retirement account, as would be the case if they were legally married.

The year after both federal courts and a state district court in Colorado struck down bans on same-sex marriage, the U.S. Supreme Court upheld marriage between same-sex couples in its 2015 landmark case Obergefell v. Hodges. Once same-sex couples were able to legally marry, a new question emerged: Does same-sex marriage becoming legal mean that same-sex couples can now retroactively establish a common law marriage?

The establishment of a common law marriage has important implications for any couple beginning the divorce process.

This is not an insignificant question since the establishment of a common law marriage has important implications for the division of property and debt and allocation of spousal support at the time of divorce. Colorado is one of a handful states that recognizes common law marriage.

Colorado law provides that common law marriage is established by the mutual consent or agreement of the parties to be [husband and wife], followed by a mutual and open assumption of the marital relationship. Colorado recognizes common law marriages if both parties are over eighteen and the marriage is not otherwise prohibited. Prior to the court decisions upholding same-sex marriage common law marriage in Colorado had also been limited to a man and woman.

Courts in Colorado have identified certain conduct that may suggest intent to be married even where no certificate of marriage exists. Called the Lucero test for the case in which the test was established, the test includes consideration of (1) cohabitation; (2) maintaining joint banking and credit accounts; (3) creating joint property ownership; (4) the parties use of one surname; and (5) the filing of joint income tax returns and any other form of evidence that openly manifests the parties intent to be married. No one factor is dispositive and there is no requirement that all of the factors be met.

Same-sex couples can now seek to establish common law marriages even if they didn’t marry.

In December 2018, the Colorado Court of Appeals ruling in In re Marriage of Hogsett held that, in order to give effect to the U.S. Supreme Court’s decision upholding the right of same-sex couples to marry, same sex couples must also have the right to establish a common law marriage.

Prior to being able to legally marry, same-sex couples could not petition a court to recognize a common law marriage even if they lived together, held themselves out to their community of friends and family as married, shared finances, or even shared a last name. The decision in In re Hogsett also clarified that the Lucero factors typically utilized by courts in determining the existence of a common law marriage should be considered within the context of the norms of a same-sex relationship.

Since same-sex couples were previously prohibited from filing joint tax returns, for example, the factors that the court would typically look at in determining a common law marriage might be irrelevant in determining whether there was mutual intent between a same-sex couple to be married. Moreover, because of existing stigmas around sexual orientation that persist despite marriage equality, some same-sex couples may be cautious about holding themselves out as married to their families and peers, or sharing a last name with their partner.

Mutual agreement between both spouses to be married must exist for a common law marriage between same-sex partners.

More important than traditional indicators of common law marriage, such as joint tax returns and joint finances, is whether both members of a same-sex couple share a mutual agreement to be married. The couple in Hogsett lived together, maintained joint accounts, initiated financial planning together, and built a custom home together. However, it was the lack of a clear mutual agreement around the alleged marriage that the Court found most persuasive in determining that a common law marriage did not exist.

One spouse held negative beliefs about marriage that she conveyed openly to others, and the couple had not acknowledged their marriage in their private correspondence between them. Also relevant was the fact that the couple (who split up in 2014 when same-sex marriage was legalized in Colorado) had previously elected not to travel to another state where same-sex marriage was legal to marry there.

Same-sex couples who did legally marry can also seek to establish retroactive common law marriage for the years before they could be legally married.

If you and your same-sex spouse are married and are now considering divorce, it is important for you both to know that for the years you were together before you legally married, a common law marriage may have existed. If you were together for a long time before you married, the value of marital property and length of any alimony term could be significantly longer than either of you may have realized.

However, if you or your spouse did not consider yourselves to be married prior to the legalization of same-sex marriage, it would generally be more difficult to find the mutual intent necessary to establish common law marriage. This might be the case if you or your spouse agreed to cohabitat, share a last name, and maintain joint financial accounts because formal marriage was not available precisely because you believed there was no legal risk or benefit in doing so.

Alternately, if you and your spouse considered your legal marriage a formality after many years of a committed partnership, a common law marriage will be more easily established based on mutual intent. If so, division of property and debt and allocation of spousal support upon divorce may potentially extend to the origin of your relationship.

Same-sex couples and opposite-sex couples who part ways have the same obligations regarding children whether they are legally married or considered common law married.

The presence of children in any relationship is relevant at the time of divorce. Parents have a legal duty to support their children, and typically the higher-earning spouse will have a child support obligation to the lower-earning spouse following divorce.

Parenting plans are put in place between divorcing parents to divide the responsibility for parenting children in the years to come. Because the laws regarding child support and allocation of parental responsibility apply equally to unmarried couples and married couples, the obligations of same-sex couples with children are not be likely to change significantly in the event of a common law marriage.

The legal landscape for same-sex couples continues to evolve.

As of now, Hogsett is the only appellate decision that directly addresses common law marriage for same-sex couples in Colorado. It is highly likely that as more same-sex couples divorce, there will be more legal inquiry and evolving case law regarding the nuances of retroactively establishing a common law marriage.

If you and your same-sex partner are considering ending a long-term relationship, you may want to seek advice from an experienced family law attorney who can help you evaluate whether common law marriage may be a factor for you. And if it is, what this could mean in terms of your financial and other obligations and benefits.

Amy Stengel is a Conscious Family™ attorney-mediator licensed in Colorado. This article does not constitute legal advice nor create an attorney-client relationship between the reader and author. You should speak with an attorney before you take steps that may impact your legal rights.