Colorado Common Law Marriage Update

The Colorado Supreme Court recently reviewed and refined the traditional common law test in three decisions published in January of 2021. See In re Marriage of Hogsett and Neale. 478 P.3d 713 (Colo. 2021); In re Estate of Yudkin, 478 P.3d 732 (Colo. 2021), and In re Marriage of LaFleur & Pyfer, 479 P.3d 869 (Colo. 2021). If you have legal needs related to a potential common-law marriage situation, please contact the professionals at Coaty and Woods, P.C.

In each case, the Court acknowledged the cultural and legal changes that have occurred surrounding marital relationships since the Lucero decision. Namely the impact Obergefell v. Hodges has on the ability for same-sex couples to be legally married, and the subsequent ill-fitting of the Lucero test’s heteronormative indicia to these same-sex relationships. The Court further found that in the 30 years since the Lucero decision, major cultural shifts affecting how all couples interact have occurred and thus the analysis of common law marriage must change. The Court went on to indicate new indicia of marriage that apply to both heterosexual and same-sex marriage relationships for the Court to consider going forward.

The overall test, however, did not change in that the Hogsett Court still found that common law marriages “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.” 478 P.3d at 715. The Court held that absent any express intent by the parties to enter into a marital relationship, the conduct of the parties must still be examined. Id. The factors should be assessed in the context of today’s norms and the norms of the parties’ culture and circumstances, which may vary. Id. Importantly, the Court in Hogsett and LaFleur also recognized that same-sex marriages may be retroactively acknowledged from before its legalization. Id.

As the Court now recognizes the differences for many same-sex couples in their marital views and their choice in adoption of traditional heterosexual marital norms, it is important for practitioners and litigants to understand how and why these differences exist and how they may impact the common law marriage analysis. If you have questions regarding any of these issues, contact an attorney at Coaty and Woods, P.C. today.

One main theme of the Hogsett decision was the importance of taking into account the context of the LGBTQIA+ community’s culture and history when analyzing whether a marital relationship exists. A court, however, may not be familiar with the customs of the community. Our attorneys can assist you with this possibility. It is important to understand the monikers that clients might use that may be different than the traditional spouse, husband, wife, etc. especially in understanding of fluid or changing gender identification. Additionally, whether the couple entered into a marital relationship before or after Obergefell, many LGBTQIA+ couples do not have traditional wedding ceremonies or exchange traditional jewelry. Jewelry exchanges could vary from a wedding broach as in Windsor, matching tattoos, bracelets, or simply wearing a wedding ring on the opposite hand. This may be because they do not want to ‘out’ themselves to their friends, family, or the community around them by wearing a wedding ring or participating in such a ceremony. Therefore, it is important to inquire about any exchange or ceremony-like event that would indicate to the court the beginning of the marital relationship.

Similarly, it is important for the Court to take into account the discrimination laws, protection, or community views of LGBTQIA+ relationships and folx when considering cohabitation, reputation in the community, and shared last names. Especially in Colorado with the high military presence and the on-going prevalence of homophobia, transphobia, etc. within the military. Lastly, practitioners should be sure to ask the client about any previous legal status that may have an impact on the common law marriage analysis. This could include marital ceremonies in different states before Obergefell, domestic partnership agreements, or even the rare case of adult adoption.

The Colorado Supreme Court’s recent refinement of the Lucero common law marriage analysis more wholly looks at the relationship between the parties under the social, cultural, and legal circumstances as they exist in today’s world. The new analysis requires a more in-depth look at the parties’ mutual intent to enter into a relationship with the legal effect of marriage. In recognizing the cultural differences for same-sex parties, the Court allows for more factors to be considered through the lens of the parties’ circumstances and the changed norms in marital and other relationships in today’s society. The professionals at Coaty and Woods, P.C. are available and ready to help you navigate the new landscape of common law marriage, as well as any other legal needs you may have. Call us today.