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Colorado Supreme Court updates definition of common-law marriage to include LGBTQ, nontraditional couples

Three rulings issued Monday broaden criteria for common-law marriage, address situations where couples don’t agree on marriage status

The Colorado Supreme Court and Colorado Court of Appeals. (Jeremy Martinez, Special to The Colorado Sun)
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The definition of common-law marriage in Colorado was expanded on Monday by Colorado Supreme Court rulings in three cases dealing with how couples who are not formally married divide assets when one person dies or leaves the relationship.

While legal protections for couples and their children have increased significantly in the decades since the Colorado Supreme Court last ruled on common-law marriages, Monday’s rulings open the door for those who may not appear married in the traditional sense to prove their status in other ways. 

Unlike formal marriage, common-law marriages don’t require a witness and are not recorded by the state. Monday’s rulings broadened the indicators used in court to decide whether or not a couple is or was in a common-law marriage, with one of the most important determinants being whether both people agree that they are or were in a common-law marriage. 

“The key question is whether the parties mutually intended to enter a marital relationship — that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation,” Justice Monica Márquez wrote in a case that found a couple was not technically married because one of the supposed spouses did not believe in the idea of marriage. 

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If one person does not agree that the relationship was a marriage, the court is expected to assess the couple’s actions. A common-law marriage will have “conduct manifesting that mutual agreement,” Marquez wrote, though that can look different from couple to couple. When the status of a marriage is in dispute, the court must look at “the totality of the circumstances,” rather than just one factor, like filing joint taxes.

Previous state court rulings have indicated that common-law spouses are considered as such because they share the same residence, purchase property together, or the wife takes the husband’s name. The court argued that while these situations often occur in a common-law marriage, they are by no means the only ways that common-law couples live. Some other indicators of a common-law marriage may include a couple’s reputation in their community as spouses, sharing financial responsibilities, including each other in estate planning and other symbols of commitment shared between the two. 

That said, just because a couple acts like they are married, if they do not consider themselves as such, then they are not technically married. 

One of the cases decided Monday, Svetlana Shtutman v. Tatsiana Dareuskaya, debated whether a deceased man’s ex-wife or his live-in partner would manage his estate. The partner claimed that she and the man were in a common-law marriage, but the court ultimately kicked the case back to the probate court to decide.

One of the biggest changes acknowledges LGBTQ common-law couples, especially those who began their marriages before the U.S. Supreme Court ruled in 2015 to legalize marriage for couples of all gender combinations. Two of the Colorado cases — Edi L. Hogsett v. Marcia E. Neale and Dean LaFleur v. Timothy Pyfer — debated the common-law status of LGBTQ couples seeking to split up. 

When a statute is struck down, in a legal sense, it is like it never existed. Following Monday’s rulings, if a gay couple was in a common-law marriage before it was legal, their marriage was retroactively validated when the the U.S. Supreme Court struck down bans on gay marriage in four states in Obergefell v. Hodges  in 2015. The Colorado Supreme Court rulings on Monday also removed gender-specific language from common-law marriage criteria.

Monday’s rulings may indicate that the court will be more protective of the rights of LGBTQ couples in the future, said Chris Jackson, a Denver lawyer and former Colorado assistant attorney general.

“It is, to a certain extent, a signal that this court will protect the rights of same-sex marriages in a lot of different contexts,” Jackson said.

Colorado is one of just eight states that allow for common-law marriages, while a handful of others acknowledge old common-law marriages but don’t allow for new ones. The last major court case in Colorado that addressed common-law marriages was People v. Lucero, in 1987.

In a concurrent brief on the Hogsett case, Justice Melissa Hart noted that common-law marriages no longer serve their initial purpose. For example, couples regularly live together and even have kids without marrying, and there are now legal statutes to manage these situations.

“The historic conditions that once justified the need for the doctrine are no longer present, its application is often unpredictable and inconsistent, and it ties parties and courts up in needlessly costly litigation,” Hart wrote. “It is my view that Colorado should join the overwhelming majority of states and abolish it.” 


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