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Common Law Marriage And What It Means for Same Sex Couples

Jorgensen, Brownell & Pepin, P.C.

In 2016, the Supreme Court ruled that same sex marriage was legal. This provided the opportunity for same sex couples in all states to marry. The Supreme Court decisions was a huge victory for the LGBT community, and in Colorado it opened questions about common law marriage. Colorado is one of five states which allows common law marriage.

A basic explanation of common law marriage is that it’s a marriage without a ceremony. If a couple is found to be married by common law that couple has the same obligations and rights as a married couple, such as property rights and maintenance. Why does any of this matter? Without being married or common law married a couple cannot seek a divorce, and if they separate there can’t be orders for spousal support, and property division must be handled through a partition or civil action.

So, how does a court decide whether or not a common law marriage exists? There is a two-part test, (1) the couple must have agreed to be common law married, and (2) the couple must hold themselves out as being married. As you can imagine, there can be issues with this test. It’s rare that a couple would sit down and put into writing an agreement that states that they are common law married, so that court looks at things like cohabitation, co-mingling of bank accounts, jointly filed tax returns, listing each other as spouse on documents such as health insurance, etc. This is where the problem comes in for same sex couples.

Many of the traditional things that the court looks to in order to prove a common law marriage exists are things that were not available to same sex couples prior to the legalization of same sex marriage. Some examples include not being able to list each other as spouses on medical documents and not being able to file taxes as a married couple. The result of this has been confusion among the Colorado courts. A recent decision from the Colorado Court of Appeals cleared a less confusing path for same sex individuals trying to prove they were common law married prior to the legalization of same sex marriage. In short, Colorado courts will now take into consideration the fact that same sex couples will use different types of evidence to prove that they were common law married. Some examples include listing each other as domestic partners on forms like life insurance, and holding each other out as partners to members in the community. Additionally, a same sex couple’s marriage can be date back to before the date of the case allowing same sex marriage.

In conclusion, the recent decision by the Colorado Court of Appeals solidified the right for same sex couples to marry via common law even married prior to the legalization of same sex marriage. If you have any questions about common law marriage and what it means for same sex couples, contact our office today.

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