Same-Sex Common Law Marriage in Colorado
Marriage may be retroactive—even before Obergefell v. Hodges made it legal
on September 28, 2017
Updated on February 15, 2022
Common law marriage derives from early English law and social custom, recognizing as legal marriage a union where the couple live together and hold out to the community that they are married. Common law marriage is currently the law in 10 states, including Colorado, as well as several more that have phased out the practice but continue to recognize marriages that met the requirements prior to changes in law. All 50 states honor legal marriages originating in other states. With gay marriage now the law of the land thanks the the U.S. Supreme Court ruling in Obergefell v. Hodges, same-sex couples are entitled to the same considerations and protections as opposite-sex couples when it comes to common law marriage, as well.
However, there are some unique considerations that become relevant when assessing long-term relationships. The length of a relationship can become legally relevant in divorce, custody and probate contexts. In a divorce, the length of the marriage will impact whether and how much spousal maintenance is awarded, and the date of the beginning of the marriage will dictate what assets are considered marital property. In a custody situation, whether children were born before or after the marriage began will govern parentage presumptions. In estate planning and probate, the length of the marriage goes to determining what portion a spouse may receive as their “elective share” of the deceased spouse’s estate, should the survivor be left out of the will.
In 2014, the 10th Circuit Court of Appeals declared the Defense of Marriage Act unconstitutional, paving the way for same-sex marriage—and thus same-sex common law marriage—to become legal in Colorado. When a law is declared unconstitutional, it is voided completely, wiped away as if it never existed. When the issue emerged as to how the law would view long-term relationships where LGBTQ couples had been living together for many years (referred to as cohabitation), the question was whether a same-sex common law marriage could have begun prior to 2014, since there was effectively no state law ever prohibiting it.
Littleton family law attorney Ann Gushurst, who has been working on this issue for several years, says yes, although the Colorado courts are still clarifying application of the law. “Ordinarily, with common law marriage, you can go back to the day the couple first established a marital relationship to find the length of the marriage. With same-sex couples, you have couples who’ve lived together for 20 years or more.”
The question becomes how they held themselves out as a couple, and this needs to be assessed somewhat differently for an LGBTQ couple, Gushurst notes. For example, they might not have referred to each other as “husband” or “wife,” but as “partner.” They wouldn’t have filed a joint tax return because that wasn’t allowed. But they might have had a joint bank account or jointly owned property.
“Where this becomes particularly significant is where the law applies to children,” says Gushurst. “So many family rights derive from marriage.” For example, parentage is presumed in a marriage. Even when a child is not the biological offspring of one of the spouses, a baby born to a married couple will be presumed the child of both partners. Where a same-sex couple who have not received the benefit of marriage had a child, one parent is identified as the biological parent, the other the adoptive parent, and these are not treated equally.
When relationships fall apart and become combative, these labels can unravel parental ties. “I’ve seen situations where the biological mom says, ‘Oh, she babysat but she wasn’t a parent,’” Gushurst says. Recognizing the relationship as having been a legal common law marriage at the time of the child’s birth allows for the parentage presumption to apply.
Gushurst is currently awaiting the outcome on two divorce cases she’s litigating regarding this groundbreaking issue of the start date of a common law marriage. In addition, she knows of a recent probate case that addressed a similar issue and resolved in favor of finding a long-term common law marriage. “That was the easier call,” she says, referring to the sympathetic nature of a widow being potentially shut out of her life’s savings and property. “Divorce cases are messier.”
Other states recognizing common law marriage have been establishing long-term common law marital rights in same-sex couples, and Gushurst is optimistic that Colorado law will follow suit.
If you are (or were) in a same-sex partnership that predates 2014 and need advice on your legal status and its implications, talk to a family law attorney with expertise in same-sex marriage issues. For more information on this area, see our overview of family law.