Colorado Same-Sex Marriage Divorce

August 16, 2018 | Bill Henry

Same-sex couples have been able to legally marry in the U.S. since 2015, but some couples wonder what happens if that marriage ends. Most importantly, same-sex couples who want to end their civil union or marriage are entitled to the same property division, spousal maintenance, child support, and parenting rights as their straight counterparts.

Your relationship’s legal title may have undergone significant changes from when you and your partner first became a couple – from partnership to union to marriage.

Perhaps you never converted your civil union to a marriage and you’re concerned that could affect your rights. Maybe you and your partner were together for years before any legal recognition even existed and you believe that time should be considered when determining your property and parenting rights.

We’ll explore some of the variables that can affect the approach you and your attorney will take to obtain a fair and equitable split between you and your partner.

Talk to a Same-Sex Marriage Divorce Lawyer

Our Family Law Attorneys are well-versed in Colorado divorce law and how it affects same-sex couples. If you are considering a divorce, consider scheduling a free, 30-minute case assessment with one of our divorce lawyers. Call 303-688-0944 to set up that meeting.

Picture of same-sex couple going through a divorce

How Colorado Divorce Laws Apply to Same-Sex Marriage, Civil Unions & Domestic Partnerships

Whether you 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:
  • you entered into a type of agreement legally recognized at the time (in Colorado or elsewhere) and
  • one of you has lived 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 the state’s dissolution laws if 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 are happy to discuss this with you.

Dissolution of both same-sex marriages and civil unions are subject to the same laws as straight marriages.

Same-Sex Common-Law Marriage and Divorce

Remember the days of commitment ceremonies and promise rings? Even if 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 a few states that still recognizes common-law marriage, and it follows that common-law marriage applies to same-sex couples.

In fact, in 2021 the Colorado Supreme Court answered this question: if a same-sex marriage could not have existed before 2015, was it even possible for common law marriage to have existed for same-sex couples? The state’s highest court said the answer is yes.

The Colorado Supreme Court ruled that a same-sex common-law marriage entered into before same-sex marriage was legal should be recognized as if it was always legal.

How to Determine if a Couple is Common-Law Married

The high court also updated the test to determine whether a couple is common-law married. The legal test for a common-law marriage was decades old, and it focused on determining common-law marriages of opposite-sex couples.

The new test focuses on the couple’s agreement to be married and/or their conduct during the relationship. We provide terrific information on the changes to common-law marriage determination in this article.

Potential Rights Under a Domestic Partnership

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 a couple is unmarried, the Colorado courts have recognized that the parties to a relationship may still be entitled to certain relief under contract and equity principles.

Unjust Enrichment Claims

Unjust enrichment is a legal remedy designed to avoid a benefit to one person at the unfair detriment to another. So let’s take a look at how might this apply to a romantic relationship.

Your partner was enriched if they received a benefit from your relationship, and that enrichment is unjust if keeping that benefit would violate principles of justice and equity.

Here’s an example:

An unmarried man contributed $100,000 toward the major renovation of the home he shared with his partner. The man’s partner owns the house. Now the couple has split up. The court likely would allow the man to bring an unjust enrichment claim related to his $100,000 investment in the home. Why? It would be considered unjust enrichment for the man’s partner to keep the renovated house without compensating his ex for his portion of the improvements.

Express Contract

You and your partner have an oral or written agreement and you want to enforce that agreement. These types of agreements can be called cohabitation agreements or domestic partnership agreements.

You have, no doubt, participated in an express contract, you just may not have known its formal legal language. An express contract is a written or verbal agreement between two parties in which each party promises to do something. For example, Laurel agrees to clean Jean’s house, and Jean agrees to pay Laurel $150 for her work.

An example of an express contract between a couple: Committed partners draft a legal contract that outlines property rights, alimony, and allocation of parental responsibilities.

Implied Contract

Unlike expressed contracts, implied contracts are neither said out loud or written down. An implied contract would be one you and your partner created by your mutual conduct, rather than in words.

Here’s a good example:

You and your partner consistently made joint purchases. You held joint bank accounts and owned property together. This mutual conduct supports an assertion that you intended to share the assets the two of you accumulated during the relationship.

Constructive Trust

A constructive trust is not a trust in the sense that there’s a trustee who oversees funds or property for someone like there are in trusts created during estate planning. A constructive trust is a legal remedy the courts can use for unjust enrichment.

The court may impose a constructive trust if your ex-partner has been unjustly enriched by obtaining legal title to property at your expense or in violation of your rights.

Here’s an example of how a court imposed a constructive trust:

A Massachusetts court awarded a 50 percent interest in a home in constructive trust to a lesbian plaintiff. The court highlighted the special confidence the plaintiff placed in her partner of 14 years, the contributions the plaintiff made to the home she and her partner shared, and her partner’s promise to eventually put her on the house’s title.

Partition Action

Real property held jointly or in common by you and your partner. The court can divide the property into individually owned interests.

Parenting Rights

A same-sex parent is protected under Colorado law even if they are 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 judges turn to what is in the child’s best interests when they determine parental responsibilities.

Talk to a Divorce Lawyer if You are Considering a Same-Sex Marriage Divorce

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 legal advice. Call 303-688-0944 to set up a free, 30-minute case assessment to discuss your rights and responsibilities under the law.

More Than Just Lawyers. Lawyers for Your Life.

Learn more about our law firm’s philosophy and values.