In 2015, The United States Supreme Court’s decision in Obergefell v. Hodges threw open the marriage doors to members of the LGBT community in any state of the union. A multitude of previously inapplicable laws now suddenly applied to gay and lesbian couples – including those applicable to divorce. Now same-sex couples seeking dissolution of a civil union or marriage are entitled to the same property division, spousal maintenance, child support, and parenting rights as their heterosexual counterparts.
But many same-sex couples are still confused about what to expect when it comes to dissolving their relationship. The legal title for your relationship may have undergone significant changes from initiation to now – from partnership, to union, to marriage. Maybe you never converted your civil union to a marriage, and are worried that could affect your rights. Perhaps you and your partner have been together for years before any legal recognition even existing, and you believe that time should be considered when determining your property and parenting rights. You are right to be concerned – these variables can affect the best way to approach obtaining a fair and equitable “parting of ways” between you and your partner.
Marriage, Civil Unions and Some Domestic Partnerships
Whether you have entered into a civil union, a marriage or a domestic partnership, Colorado’s divorce laws may apply if you decide to end your relationship.
Gay and lesbian couples can file for a dissolution of a civil union or a marriage so long as:
- The couple entered into a type of agreement legally recognized at the time (in Colorado or elsewhere); and
- One of the parties to the agreement has been domiciled in Colorado for at least 91 days before filing for dissolution; or
- The agreement was entered into in Colorado.
Some domestic partnerships entered into outside Colorado may also be subject to dissolution laws, so long as the partnership granted the parties similar legal rights to those granted by Colorado civil unions. If you are domestically partnered and unsure if Colorado’s dissolution laws apply, we’d be happy to discuss this during a free consultation.
Dissolution of both same-sex marriages and civil unions are subject to the same laws as heterosexual marriages.
Common Law Marriage
Remember the days of commitment ceremonies and promise rings? Even though you never went down to the courthouse and got a marriage license, you and your partner may still be considered common law married under Colorado law.
Colorado is one of the few states that recognizes “common law marriage,” and it follows that common law marriage applies to same-sex couples. Common law marriage is established when the parties (1) mutually agree to be married and (2) mutually and openly hold themselves out as married in the community.
However, neither the appellate courts nor the legislature have yet to address the application of the common law marriage doctrine to same-sex relationships in-depth. Common law marriage of a same-sex couple was recognized by a Jefferson County probate proceeding, but trial court level rulings do not constitute binding law. The legal principles would have to come from the legislature or the appellate courts to create a legal certainty.
What is particularly unclear is whether the “start date” of common law marriages would be recognized retroactively, only after the recognition of civil unions (March 2013), or beginning with the legalization of same-sex marriage (October 2014). This determination will affect what evidence a party can offer the court as proof that he or she is common law married, and could affect property division and parental responsibilities.
Robinson & Henry recognizes the current uncertainty of the common law doctrine for same-sex couples, and will help to figure out the most effective arguments to be made, under multiple theories of law, in order to achieve the best possible outcome for the closure of your relationship.
Even if you never entered into a civil union or marriage with your partner, you may still be entitled to certain rights related to your relationship. Likewise, the period that couples were together before the legal recognition of their relationship may still play a role in property division.
Even if parties are unmarried, the Colorado courts have recognized that parties to a relationship may still be entitled to certain relief under contract and equity principles:
Unjust Enrichment: this is a remedy created by the court that is designed to avoid a benefit to one person at the unfair detriment to another.
- Your partner was enriched if they received a benefit from your relationship
- That enrichment is unjust if keeping that benefit would violate principles of justice and equity.
Example: The court allowed an unmarried party to bring an unjust enrichment claim relating to his contributions in supplying $100,000 plus free drafting and planning services for construction of a home he shared with his companion.
Express Contract: You and your partner have an oral or writtne agreement and you want to enforce that agreement. (Sometimes known as “Cohabitation/Domestic Partnership Agreements”)
- An offer was made and accepted, and that agreement was supported by some form of consideration (an act, a forbearance or a return promise)
Example: A couple previously drafted a legal contract outlining property rights, “spousal” maintenance, and allocation of parental responsibilities.
Implied Contract: You and your partner may have manifested an agreement by your mutual conduct, rather than in words.
Example: The fact that you and your partner made consistent joint purchases, jointly titled property and held joint bank accounts supports an assertion that you intended to share assets accumulated during the relationship.
Constructive Trust: The court may impose a constructive trust when the defending party has been unjustly enriched by obtaining legal title to property at the expense of the other party, or in violation of the claiming party’s rights.
Example: A Massachusetts court awarded one-half interest in a home in constructive trust to a lesbian petitioner. The court highlighted the special confidence the plaintiff placed in her partner of 14 years, the contributions plaintiff had made to the home she and her partner shared for the past seven years, and her partner’s promises to eventually convey joint title to the property.
Joint Venture: you and your partner have a joint interest in property, an agreement to share in the profits and losses of the venture, and your actions show cooperation in that project.
Partition: Real property held jointly or in common by you and your partner. The court can divide the property into individually owned interests.
A same-sex parent is protected under Colorado law even if not married to or in a civil union with the child’s biological parent. Non-biological and non-adoptive parents may still be recognized as the “psychological parent” of a child. If you are a child’s psychological parent, you are may be entitled to parenting time and decision-making responsibilities. A psychological parent is one who has developed a parent-child relationship with a child through day-to-day interaction, companionship and caring for the child. Colorado courts emphasize that it is the child’s best interests, his or her “physical, mental, and emotional conditions and needs,” that is the paramount consideration in determining allocation of parental rights.
If you are considering a divorce, or would like to discuss your rights in separating from your current partner, it is always important to seek advice from an attorney. The dedicated Denver divorce attorneys at our firm can answer your questions. Contact Robinson & Henry, P.C. at (303) 688-0944 to discuss your case. Your initial consultation is free!