Same-Sex Common Law Marriages

The Colorado Supreme Court recently ruled that a same-sex common law marriage created before same-sex marriage was legal should be recognized as if they were always legal.

Lead Family Law Attorney Marlana Caruso delves into what this change means for same-sex couples in the video below.

Questions About a Same-Sex Common Law Marriage?

Divorce is complex. Common law splits? They tend to be even more complicated. If you’re in a common law marriage and plan to end it, we strongly recommend you talk to a divorce attorney.

Schedule a free 30-minute consultation with a family law attorney when you call 303-688-0944. Click here to schedule online.

Pre-2015 Same-Sex Common Law Marriage to be Recognized

A lot of changes have taken place in the years since the U.S. Supreme Court recognized the validity of same-sex marriage in 2015.

Most recently, the Colorado Supreme Court ruled that a same-sex common law marriage created before same-sex marriage was ever legally recognized across the country should be treated as if they were always valid.

In addition to the potential confusion this court-ordered retroactive recognition may create, there is the general complexity surrounding common law marriage in Colorado. So let’s break all of this down.

What is Common Law Marriage?

Common law marriage is a way to be legally married without going through a formal process. The formal process involves obtaining a marriage license. It often includes holding a wedding ceremony or having a justice of the peace oversee the union.

Obergefell v. Hodges

Before the U.S. Supreme Court decided the case of Obergefell v. Hodges in 2015, Colorado did not recognize same-sex marriage.

Obergefell v. Hodges is a landmark civil rights case that ruled bans on same-sex marriage and bans on recognizing same-sex marriage from other jurisdictions are unconstitutional.

As a result of Obergefell, same-sex marriage is now as valid as heterosexual marriage.

Recognizing Same-Sex Common Law Marriage

As same-sex marriage became legal around the country, the question for some states, including Colorado, became: What do we do with common law interest?

Not every state recognizes common law marriage. In fact, most states do not recognize it. According to the National Conference of State Legislatures, as of November 2020, only Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah legally allow common law marriage.

The question in Colorado became: 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 answer is yes.

The Colorado Supreme Court stated that the U.S. Supreme Court’s decision in Obergefell nullified Colorado’s restrictions on same-sex marriage.

As of January 2021 in Colorado, same-sex couples who wanted to be common law married prior to 2015 but could not do so due to bans, can retroactively apply that fundamental right to their relationship. In other words, it’s like the couple was married all the while.

Here’s an example: 

Let’s say you’ve been with your partner since 2003. You now have the ability to claim a common law marriage within your same-sex relationship.

This is an exciting, but still developing area of the law that can open up a number of advantages for same-sex couples. However, this can get complicated because determining whether someone is common law married is difficult in and of itself.

Fortunately, in January, the state supreme court also updated the legal test, or framework, for a common law marriage in colorado. Until now, the legal test for a common law marriage was decades old. That framework focused on determining common law marriages of opposite-sex couples. Additionally, the state’s high court acknowledged that common-law marriage indicators are no longer necessarily tied entirely to a married couple, for instance, cohabitation.

In light of that, the court updated Colorado’s common law marriage test:

…a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. In assessing whether a common law marriage has been established, courts should accord weight to evidence reflecting a couple’s express agreement to marry.  

In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct. When examining the parties’ conduct, the factors identified in Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form.
– Hogsett v. Neale, Colorado Supreme Court opinion, paragraph 3

Some of that evidence can include: 
  • cohabitation
  • hold themselves up as a married couple in the community
  • have banking or credit account together
  • purchase property together
  • file joint tax returns
  • share bills
  • joint estate planning, such as wills and powers of attorney
  • designate one another as an emergency contact or beneficiary
  • hold a commitment ceremony
  • celebrate anniversaries
  • referring to one another as husband, wife, or spouse

More Court Fights Over Same-Sex Common Law Marriage?

R&H Family Law Attorney Marlana Caruso says it is certainly possible for a former partner to come back and request spousal support and assets from what would now be recognized as a same-sex common law marriage.

“Generally, in Colorado, you’re married until you’re not,” Marlana said. “So if you had a valid common law marriage, just because you broke up at some point doesn’t necessarily mean that the marriage broke up.”

Assets accumulated during a separation from a spouse are still considered marital property and are subject to equitable division. Now, the court will take into consideration facts such as, the length of the separation and who contributed what during that separation.

Tip of the Iceberg?

The following two cases ruled on in January by the Colorado Supreme Court could represent the tip of the iceberg of litigation related to same-sex common law marriage.

These interesting cases had two different outcomes. In one, the court found the same-sex couple had indeed intended to be married. In the other, the court found the opposite

LaFleur v. Pyfer

In LaFleur v. Pyfer, the couple held a ceremony in 2003 in front of family and friends. They exchanged rings and vows. The couple signed a document titled “Certificate of Holy Union.” Fifteen years later, the couple split. Pyfer filed for divorce.

Divorce Court

After hearing evidence of the couple’s relationship – a proposal, the ceremony, checking the married box on documents, and more – a lower court granted the divorce. Pyfer was awarded spousal maintenance and part of LaFleur’s retirement money. That ruling came in spite of LaFleur insisting he never intended to actually be married.

Appeals & the State Supreme Court

LaFleur appealed. Pyfer cross-appealed. Eventually, after their cases being heard in other courts, their case made its way to the state supreme court.

LaFleur’s argument was that it was impossible for the couple to have entered into a marriage due to same-sex marriage not being legal in 2003.

The Colorado Supreme Court disagreed, and it found the couple had entered into a same-sex common law marriage. As such, the court ordered that spousal support and division of assets be revisited.

Hogsett v. Neale

In Hogsett v. Neale, the couple was together between 2001 and 2014. They did not hold a formal ceremony before friends and family, though they did give each other a ring while they were at a bar. They bought a home together during their relationship. But in 2015 they mutually filed for divorce.

Divorce Court

In this case, a lower court said it needed proof of marriage before it could address the requested dissolution of marriage. Instead, the case was dismissed after the couple attended mediation to work out a settlement without the court’s involvement.

But, Hogsett later sought alimony and part of Neale’s retirement money.

District Court

The case went to district court, where Neale testified she did not believe in marriage, and that she never referred to Hogsett as her wife.

Despite the couple purchasing a house together and mingling their finances, the district court ruled Hogsett did not meet the burden to establish that she and Neale intended to be married.

The State Supreme Court

This case ended up before the Colorado Supreme Court. Using the revised common law marriage framework, the high court said it must turn to how the couple’s conduct to determine if a common law marriage was intended.

Some of the evidence the court considered: 
  • no celebration of anniversaries, publicly or privately
  • an informal ring ceremony
  • inconsistently wore the rings
  • no references of each other as wife
  • one partner’s listing of the other as next of kin, primary beneficiary, and domestic partner
  • the other partner’s never making any of those designations
  • both parties asking for a divorce
The court found the couple had never been in a common law marriage:

Returning to the core query, it is clear that both parties were in a committed, intimate relationship for thirteen years. Nevertheless, to establish a common law marriage, there must be mutual intent to enter a marital relationship. Although Hogsett testified that she had such intent, the record reflects that Neale did not.
– Justice Monica M. Márquez, delivered the Court’s Opinion

We Can Help You

If you find yourself in a situation where you potentially have some common law marriage issues, reach out to an attorney. Our attorneys have experience dealing with the complexities of common law marriages.

Your first step is to schedule a free initial consultation. Call 303-688-0944 to set up that 30-minute case assessment. You can also make that appointment yourself when you click here.

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