Kara Sears
Same-sex marriage has been legal in the United States since 2015, following the U.S. Supreme Court's ruling in Obergefell v. Hodges. This ruling established that same-sex couples are entitled to the same considerations and protections as heterosexual couples when it comes to marriage. In light of this legalization, many gay couples in Colorado may be wondering about the legal status of their relationships, including whether they can be considered Common Law Married. Common-law marriage is a form of legal marriage that holds equal standing with traditional marriages, but without the need for a marriage license or certificate. Instead, spouses in a common-law marriage mutually acknowledge and hold themselves out as a married couple. This raises questions about how the law applies to long-term LGBTQ couples who have been cohabiting for many years.
| Characteristics | Values |
|---|---|
| Common law marriage recognized in Colorado | Yes, since 1887 |
| Common law marriage for same-sex couples recognized in Colorado | Yes |
| Requirements for common law marriage | Cohabitation, mutual agreement to be married, and intention to enter a marital relationship |
| Rights of parties in a common law marriage | All rights, privileges, and responsibilities of a legal and binding marriage, including spousal maintenance, property rights, and child custody |
| Retroactive recognition of common-law marriages for same-sex couples before the legalization of same-sex marriage | Yes, per the Colorado Supreme Court ruling |
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What You'll Learn
- Common law marriage in Colorado: requirements and recognition
- The legal status of same-sex relationships prior to the legalization of gay marriage
- How to prove a common law marriage for gay couples?
- Rights and responsibilities of common law spouses in Colorado
- Divorce, child custody, and asset division in a common law marriage
Common law marriage in Colorado: requirements and recognition
Colorado is one of the few remaining states that recognize common-law marriages. Common-law marriages have been recognized in Colorado since 1887, and same-sex common-law marriages have been recognized since 2015.
To be considered a common-law married couple in Colorado, there are two main requirements. First, both parties must agree to be married. This agreement does not need to be written or verbal, but there must be evidence of a mutual understanding. This evidence can include sharing joint bills and expenses, joint finances and accounts, jointly titled property and debts, exchanging rings or vows, holding a ceremony, and announcing the marriage to others. Secondly, both parties must act like a married couple. This means that a common-law marriage can be established in one day, regardless of the length of the relationship.
Once a common-law marriage has been established, the couple is entitled to all the rights, privileges, and responsibilities of a legal and binding marriage. This includes the ability to file for divorce, divide debt and property, and issue spousal maintenance (alimony) or child custody orders. If there is a dispute about whether a common-law marriage existed, the couple can request a hearing to present evidence and testify.
It is important to note that common-law marriages may not be recognized in states that do not legally allow them. However, if a common-law marriage is valid in the state it began, all states, including Colorado, must recognize it.
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The legal status of same-sex relationships prior to the legalization of gay marriage
Same-sex marriage has been legally recognized in Colorado since October 7, 2014. However, prior to this date, same-sex couples faced legal obstacles and discrimination, with Colorado voters even approving Amendment 43 in 2006, which prohibited the recognition of same-sex marriage in the state constitution.
Despite these challenges, there were some legal avenues for same-sex couples to establish their relationships before the legalization of gay marriage in Colorado. One option was through common-law marriage, which Colorado recognizes and has done so since 1887. Common-law marriage is a form of legal marriage that holds the same weight as a traditional marriage, but without the couple obtaining a marriage license or certificate. Instead, spouses in a common-law marriage mutually acknowledge themselves as a married couple and cohabit.
The Colorado Supreme Court has declared that this mutual understanding can take various forms, and there is no requirement for a written or verbal agreement. Factors that indicate a common-law marriage include sharing joint bills, expenses, finances, accounts, property, and debts, having shared children, exchanging rings or vows, holding a ceremony, and announcing their marital status to others.
In the case of Dean LaFleur and Timothy Pyfer, who separated in 2018, a district court judge ruled that the couple was common-law married, despite LaFleur arguing against it. This ruling was upheld by the Colorado Supreme Court, which stated that same-sex couples must be allowed to enter into common-law marriages, and the state must retroactively recognize such marriages that occurred before the legalization of gay marriage.
Another legal option for same-sex couples before the legalization of gay marriage in Colorado was civil unions. Civil unions have been legal in the state since May 1, 2013, and provide rights comparable to those of married couples, including spousal employer benefits, presumption of paternity, adoption, next of kin rights, and inheritance. However, as the federal government does not recognize civil unions, partners in such unions are not entitled to federal benefits.
The legal status of same-sex relationships before the legalization of gay marriage in Colorado was complex and discriminatory. While there were some avenues for same-sex couples to establish their relationships, such as common-law marriage and civil unions, they faced legal obstacles and a lack of federal recognition. The legalization of gay marriage in Colorado and the subsequent recognition of same-sex common-law marriages were significant steps toward equality for LGBTQ+ individuals in the state.
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How to prove a common law marriage for gay couples
Same-sex couples have the same legal right as opposite-sex couples to establish a common-law marriage. However, gay and lesbian partners may face challenges in gathering the evidence required to prove their relationship qualifies as a common-law marriage. This is because, in the past, they did not have the option to file joint tax returns or list their partner as their spouse on official documents. Additionally, due to the fear of discrimination, same-sex couples may not have publicly held themselves out as a married couple. Nevertheless, same-sex partners can still prove their common-law marriage by presenting evidence of their intention to be married and their conduct as a couple.
To prove a common-law marriage for gay couples, it is essential to understand the specific requirements and laws of your state, as they may vary. In Colorado, for example, common-law marriages have been recognized since 1887, and same-sex couples can enter into common-law marriages. The basic requirements include proving cohabitation and a mutual agreement to be married. While there is no requirement for a written or verbal agreement, several factors can indicate a mutual understanding:
- Sharing joint bills, expenses, finances, accounts, property, and debts
- Having shared children
- Exchanging rings or vows, holding a ceremony, or making public announcements
- Participating in community activities as a family
To prove cohabitation, documents such as lease agreements can be useful. Additionally, while not always applicable, joint tax returns, insurance policies, and other official documents indicating both partners' intentions to marry can be considered. Affidavits or testimonies from both partners and individuals within their community can also strengthen the case for a common-law marriage.
It is important to note that the length of the relationship can impact the legal proceedings, as a claim asserted years later may be less credible. Additionally, the precise evidence required may vary depending on the state, so consulting an attorney or legal professional is advisable.
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Rights and responsibilities of common law spouses in Colorado
In Colorado, a common-law marriage is established when two people mutually agree or consent to enter into the legal and social institution of marriage, followed by conduct that demonstrates this mutual agreement. This means that two people are common-law married when they agree to be married and then act like a married couple. This includes cohabitation, providing financial support, and listing each other as spouses on official forms.
Colorado is one of the few states that recognizes common-law marriages, and these are considered legal marriages without the couple having registered their relationship with the state. Once a common-law marriage is established, the couple is entitled to all the rights and responsibilities of a legally binding marriage. This includes the ability to file for divorce, divide debt and property, and request spousal maintenance (alimony) or child custody orders.
In the case of same-sex couples, the determination of a common-law marriage may be more complex. While same-sex marriage is now legal across the United States, same-sex couples may not have referred to each other as "husband" or "wife" or filed joint tax returns due to legal restrictions at the time. However, other factors such as joint bank accounts, jointly owned property, and public declarations of their relationship as a couple can be considered when determining the existence of a common-law marriage.
It is important to note that the determination of a common-law marriage can be complex, and specific circumstances may vary. If there is any uncertainty about the status of a common-law marriage or the rights and responsibilities associated with it, it is advisable to consult an experienced family law attorney for guidance.
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Divorce, child custody, and asset division in a common law marriage
In Colorado, common-law marriages have been recognized since 1887, and same-sex couples are entitled to the same considerations and protections as opposite-sex couples. This means that same-sex couples in Colorado can enter into common-law marriages.
Once a common-law marriage has been established, the couple is entitled to all the rights and responsibilities of a legally binding marriage, including the ability to file for divorce and request court orders for debt and property division, spousal maintenance (alimony), and child custody.
When it comes to divorce, child custody, and asset division in a common-law marriage in Colorado, there are several important considerations:
Divorce
To file for divorce in Colorado, at least one spouse must meet the state's residency requirements by residing in the state for a minimum of 91 days before initiating the process. The first step in the divorce process is to negotiate a settlement, which involves reaching an agreement on issues such as child custody, spousal support, property division, and debt allocation. This can help avoid a lengthy and costly trial and gives both parties more control over the outcome. It is important to understand your rights and obligations under Colorado law and gather relevant financial and personal information.
Child Custody
Determining child custody requires careful consideration of the best interests of the child. Parents are encouraged to work together to create a parenting plan that meets the child's needs and provides a stable and safe environment. If parents cannot agree, mediation or court intervention may be necessary. In a common-law marriage, a child born to the married couple will be presumed to be the child of both partners, even if one spouse is not the biological parent. This presumption of parentage can be important in ensuring parental rights in the event of a relationship breakdown.
Asset Division
Colorado is an "equitable distribution" state, which means that marital assets are divided fairly and equitably, but not necessarily equally. The court will consider various factors, including the contribution of each spouse to the marriage, both financially and non-financially, such as homemaking and childcare. The financial needs of each spouse are also taken into account, and the court may award a larger share of the assets to a spouse with a lower earning capacity. Separate property, such as property owned by one spouse prior to the marriage, is generally excluded from division, but it can become marital property if it is co-mingled or titled jointly. Marital property typically includes any property or assets acquired during the marriage, and debts incurred during the marriage are also allocated equitably.
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Frequently asked questions
A common-law marriage is a form of legal marriage that is equal in the eyes of the law to a traditional marriage. However, in a common-law marriage, the spouses never get a marriage license or certificate. Instead, they mutually agree to hold themselves out as a married couple.
Yes, common-law marriages have been recognized in Colorado since 1887. It is one of only five states that allow common-law marriage.
Yes, same-sex couples are entitled to the same considerations and protections as heterosexual couples. Since the legalization of same-sex marriage in 2015, Colorado courts have recognized that same-sex couples will use different types of evidence to prove they were common-law married. For example, listing each other as domestic partners on forms, holding each other out as partners to members of the community, sharing a joint bank account, or owning property together.
Yes, the Colorado Supreme Court has ruled that a same-sex common-law marriage created before the legalization of same-sex marriage should be recognized as if it were always legal.
