Same-sex marriage is legal in the United States. The Supreme Court decided that in 2015, leaving states like Colorado to handle the implications of what happens when a same-sex marriage ends. This article explores several important variables of Colorado same-sex marriage and divorce and how you and your ex-partner can obtain an equitable split.
In this Guide:
- Applying Colorado Divorce Laws to Same-Sex Couples
- Common-Law Same-Sex Marriage and Divorce
- Protections After Domestic Partnerships
- Parenting Rights for Same-Sex Couples
Talk to a Lawyer with Experience in Same-Sex Marriage Divorces
Robinson & Henry Family Law Attorneys are well-versed in Colorado divorce law and are up to date on how it affects same-sex couples. If you’re considering divorce and want to see how best to proceed, we can help. Call 303-688-0944 for your free case assessment.
Applying Colorado Divorce Laws to Same-Sex Couples
Colorado marriage and divorce laws are the same for same-sex couples as they are for different-sex couples. All marriages are equal under Colorado law. As such, all divorces, separations, and annulments are also equal.
Any provision that applies to heterosexual couples in a marriage, civil union, or domestic partnership applies equally to gay and lesbian couples.
Petitioning for a Same-Sex Divorce
Same-sex couples who split up can file for a legal dissolution of marriage or civil union if:
- the couple entered into a legally recognized marital or civil union agreement (in any state), and
- one partner has lived in Colorado for at least 91 days before filing for dissolution, or
- the agreement was entered in Colorado.
Common-Law Same-Sex Marriage and Divorce
Colorado law is clear about formally recognized same-sex marriages and civil unions. However, the picture was murkier for gay and lesbian couples in common-law marriages, especially those predating the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges, which requires all states to license and recognize same-sex marriages.
There were questions about how courts would address same-sex common-law marriages for couples who were together prior to Obergefell v. Hodges. It didn’t take long for the Colorado Supreme Court to address this issue.
January 11, 2021: Yudkin, Hogsett, and LaFleur
The Colorado Supreme Court decided three cases that brought clarity and equality for same-sex couples in common-law marriages.
The decisions put to bed 34 years of precedent that had stood since People v. Lucero (1987), a criminal law matter that ended up defining how Colorado determined the validity of common-law marriages. Lucero looked to certain factors, such as:
- mutual agreement and evidence of marriage,
- joint finances, tax filings, property ownership, and
- the woman (and children, if any) using the man’s surname
The three cases before the Court in January of 2021 demonstrated how outdated Lucero’s guidelines had become.
In re: Estate of Yudkin
This case established that courts must look to a totality of circumstances to determine whether a common-law marriage exists and that no single factor should outweigh the others:
“While … Lucero can still be relevant to the inquiry, they must be assessed in context … A common law marriage finding depends on the totality of the circumstances, and no single factor is dispositive.” In re Estate of Yudkin, 2021 Colo.
Hogsett v. Neale
Hogsett v. Neale helped refine decades-old common-law marriage criteria, further cementing the court’s determination that common-law marriage assertions, especially for same-sex couples, be evaluated on a case-by-case basis.
“In light of the U.S. Supreme Court’s decision in Obergefell, the Supreme Court of Colorado discards State v. Lucero’s gendered language … There may be cases where, particularly for same-sex partners, a couple’s choice not to broadly publicize the nature of their relationship may be explained by reasons other than their lack of mutual agreement to be married.” Hogsett v. Neale, 2021, Colo.
In re: Marriage of LaFleur v. Pyfer
Finally, LaFleur v. Pyfer established that common-law same-sex marriages entered into before Obergefell (2015) should be retroactively recognized as valid and legal.
“A court may recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples’ fundamental right to marry.” In re: Marriage of Lafleur v. Pyfer, 2021, Colo.
To recap, Colorado same-sex common-law marriage:
- entered into before Obergefell (2015) must be legally recognized in Colorado as if they were always legal,
- disputes over whether a common-law marriage exists are resolved by the court determining if the partner’s conduct demonstrated a mutual agreement,
- conduct is examined under a totality of the circumstances, as a mere agreement is not always enough to establish common law marriage.
We provide more information on same-sex common-law marriage determination and more background on a couple of the aforementioned cases in a separate article.
Out-of-State Common Law Marriages
Colorado treats every legally recognized same-sex relationship from anywhere as a marriage for the purposes of same-sex divorce. This goes for couples who have moved to Colorado from states that don’t recognize common-law marriage.
Protections After Domestic Partnerships
You could be entitled to certain rights and relief after the end of a relationship even if you weren’t married or in a civil union. Colorado courts will consider any written or implied agreements between you and your partner.
Express and Implied Agreements
Express contracts are guidelines you and your partner agreed to in writing during the relationship. This includes any cohabitation agreements outlining property rights, alimony, and/or the division of parental responsibilities.
Implied contracts are not written out, but expressed through mutual conduct. For example, if you and your partner shared a checking account, used it to make joint purchases, and shared the items you purchased, you could be entitled to an equitable portion of those items.
Unjust Enrichment and Constructive Trust
You needn’t be married or in a civil union to put a lot of money into a relationship. Colorado law has remedies in place for individuals who made substantial financial contributions to a relationship that has ended.
Unjust enrichment claims can compensate individuals who might have been financially taken advantage of during a domestic partnership. For example, if an unmarried man transfers $100,000 to his partner to remodel the home his partner owns, he can file an unjust enrichment claim to be compensated for that investment.
Constructive trust is a remedy the court may impose on an ex-partner who has obtained legal title to a property by taking advantage of you or violating your rights. For example, if your partner took money from you to buy out a former business partner, then ended the relationship without paying you back or fulfilling a promise to give you a share of the business profits, a court could award you a portion of the profits, or part of the proceeds if the business is sold.
Real Estate Protection
Finally, a partition action allows the court to divide any real property held jointly or in common by you and your ex-partner.
Parenting Rights for Same-Sex Couples
Same-sex parents are protected under Colorado law regardless of marital status. Non-biological and non-adoptive parents may still be recognized as the psychological parent of a child. A psychological parent is one who develops a parent-child relationship with the child through day-to-day interactions, companionship, and caring for the child.
If you are a child’s psychological parent, you may be entitled to parenting time and decision-making responsibilities. Colorado judges turn to what is in the child’s best interests to determine parental responsibilities.
Marlo’s Law streamlined the confirmatory adoption process for non-biological and same-sex parents of children produced by Artificial Reproductive Technology (ART).
The law also amended existing statutes that define parentage by eliminating gender-specific nouns, such as mother and father or husband and wife, to provide better legal clarity.
Under Marlo’s Law, individuals are defined as parents regardless of how their child is born.
Protect Your Rights in a Same-Sex Divorce
If you are considering a divorce or would like to discuss your rights in separating from your current partner, it’s important to seek legal advice. Our Family Law Team is here to listen and can guide you to a fair outcome. Call 303-688-0944 to begin your free case assessment.