In 2019 I wrote about new developments in the law that had the potential to impact same-sex partners going through the divorce process (read the original article here). At that time, Colorado appellate courts had begun hearing cases on novel issues resulting from the Supreme Court’s 2015 decision to uphold gay marriage, Obergefell v. Hodges. There arose a number of questions about how the Supreme Court’s decision was to be applied to same-sex couples in Colorado who may have been married at common law for many years before they could have been legally married. As one of only a few states that still recognize common law marriage, the legal landscape for same-sex couples in Colorado became uniquely complex. 

For example, how could courts then determine the existence of a common law marriage between same-sex partners when the standards traditionally used in the analysis pertain largely to opposite-sex couples? In other words, when deciding critical questions impacting an individual’s legal obligations to a former partner, such as with the establishment of a common law marriage, shouldn’t same sex relationships be evaluated based on same-sex relationship norms and not opposite-sex ones?

Mutual intent to enter into a marital relationship; not just a committed relationship

On January 11, 2021, the Colorado Supreme Court issued decisions in In re Marriage of Hogsett as well as the companion cases In re Marriage of La Fleur/Pyfer and In re Estate of Yudkin.  In 2019 I had written about the Hogsett case and the resulting uncertainty of how the law would be applied by appellate courts.

Following the Colorado Supreme Court’s decision in the Hogsett appeal, the test used in evaluating a common law marriage claim has been refined.  Common law marriage is still established by mutual consent or agreement of the couple to enter the institution of marriage, followed by conduct manifesting their mutual agreement. The core inquiry is whether two partners intended to enter a marital relationship, to share a life together as spouses in a committed, intimate relationship of mutual obligation and support. 

Yet what might this mean for same-sex couples who may not have been open about their relationship out of fear of discrimination or because certain things traditionally associated with a marital union, such as jointly filing tax returns, were not yet available to them? In order to account for these different gendered norms, there must be some manifestation of intent through conduct but the analysis now calls for a flexible inquiry into the totality of circumstances. 

Following these newly-decided cases, these things may still be considered in determining whether a common law marriage exists:

- cohabitation;

- reputation in the community as spouses; 

- ownership and management of joint banking and credit accounts;

 - joint ownership of real property;

- filing of joint tax returns; and

- use of one spouse’s surname for the couple. 

But, now courts should also consider: 

In order to allow for a more inclusive, flexible analysis that is suitable for both opposite-sex and same-sex couples, as well as reflective of societal changes at large, in the event of a dispute about the existence of a common law marriage, courts will now also be tasked with looking at the following: 

- shared financial responsibility such as lease agreements in both parties’ names, joint bills or other jointly-paid expenses;

- joint estate planning;

- emergency contact designations;

- symbols of commitment such as ceremonies, gifts, and anniversaries; 

- the couple’s labels for one another; and

- each individual's beliefs about marriage.

Beliefs about marriage are particularly important in inferring an intent to be married when evidence of an express agreement may be lacking. This was the case for the couple in Hogsett where the Court ultimately held that no common law marriage existed.  The strongest evidence against such a finding was that one of the women had openly expressed her skepticism about marriage throughout the time she had been involved in the relationship, conveying to others who knew her that she did not believe in the institution of marriage. The women may have been committed to each other as partners for many years, even building a custom home together, but the lack of mutual understanding about their status ultimately weighed against a common law marriage. 

As opposed to a more rigid, bright-line test, following these decisions, the analysis of whether a common law marriage exists may vary widely depending on the couple. In some cases the presence of a factor may be telling while the absence of a factor has no bearing, and in other instances the absence of a factor may be persuasive but the presence of another may be irrelevant. Flexibility and a totality of circumstances approach is now necessary in the context of same-sex relationships where heterosexual norms often do not apply, and in opposite-sex relationships where traditional indicators of marriage may not be applicable to the particular couple.

For example, for an opposite sex couple in the In re Estate of Yudkin case, the fact that the couple had never filed taxes jointly, kept separate financial accounts and did not share a last name was not necessarily determinative of whether a common law marriage existed, as it might have been previously. Though the court ultimately remanded the case and did not decide the issue, it emphasized that under the refined analysis in Hogsett, these factors could still be considered, but were not necessarily indicative of a lack of intent to be married. The inferences to be drawn from the parties’ conduct may vary depending on their individual circumstances.  No single factor is conclusive, and the nuances of family histories, and religious and cultural beliefs specific to the couple, should now be considered. 

Common Law Marriage before Legal Marriage In Colorado

Importantly, because a central tenet of the Obergefell Supreme Court decision is that states must allow same-sex couples to enter marriages on the same terms and conditions as opposite sex couples, and because Colorado recognizes common law marriage between heterosexual couples, it must now also recognize those marriages between same sex couples that pre-date legal same-sex marriage. This ‘retroactive’ effect of the U.S. Supreme Court’s decision is essential towards remedying the discrimination faced by same-sex couples who had previously been denied the fundamental right to marry. However, in Colorado and other states where common law marriage remains legal, the retroactivity of Obergefell also creates a new set of challenges for same-sex couples who may have offered their commitment to their partner years before same-sex marriage became legal, not anticipating that in doing so they would ultimately be legally bound at the time of divorce.

For example, the same sex couple in the La Fleur case, decided with Hogsett, had an open commitment ceremony in front of the friends and family many years before. At least one of the men had listed his partner as his spouse on various forms during their relationship. The court found this to be convincing of their intent to be married, despite that one spouse said he would not have committed himself to the other spouse if he had known he was going to be burdened by the legal obligations of marriage upon ending the relationship. It is the intent of parties to enter into a marital relationship that is determinative, the court said, not whether either individual anticipated the legal and financial responsibilities that accompany marriage. 

So What Does This Mean For Same-Sex Couples?

What exactly does this mean for same-sex couples who did not know that they would be legally obligated to a partner when they entered into a committed relationship years before? Could members of a same sex couple form the mutual intent required for a common law marriage if they could not actually have been legally married? If you could not have known that you would be bound by the legal and financial obligations of marriage because marriage wasn’t available at the time, how could the law later impose an obligation that you never intended in the event that the relationship ends? 

While some degree of financial entanglement is likely unavoidable for most long-term relationships, if either or both members of a same-sex couple had known that they would ultimately have obligations to their partner consistent with legal marriage, they might have made different choices and even taken different steps such as entering into a prenuptial agreement. Some might have undertaken estate planning to clarify their intentions in regard to property. 

For same-sex couples who may have celebrated their partnership through a commitment ceremony or otherwise, but who had no expectations of legal marriage, they may now face much different circumstances upon divorce in terms of spousal support and marital property appreciation and division. Consider, for example, the difference in the value of a retirement account if a couple was married in 2003 versus 2014 when the law changed. Similarly, the spousal maintenance obligation for a spouse who has been the higher earner in a relationship for thirty years is likely to be much different than for one who was married less than a decade. 

Undoubtedly the law in Colorado related to common law marriage, and in particular for same sex couples, is likely to evolve substantially following these cases, which leave considerable room for further refinement specific to broader social and cultural trends. It is even possible that because the new analysis is more specific to the relationship, there will be the need for experts to testify in same-sex divorces based on their knowledge of the norms of same-sex relationships. 

In light of these recent decisions from the Colorado Supreme Court, it  will be as important as ever for same-sex couples facing divorce or separation to seek out the guidance of a qualified divorce professional, whether through mediation or legal counsel, so that they have the necessary support to navigate these nuanced questions about their legal rights and responsibilities. 

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.