Gay and lesbian, (same sex marriages) couples face unique challenges concerning awards of maintenance (alimony) in Colorado courts.
Co-Author: Gregg A. Greenstein, Esq.
The US Supreme Court legalized gay marriage in the landmark 2015 decision Obergefell v. Hodges. If a same sex couple applied for a marriage license after the Obergefell v. Hodges decision, the date of marriage is easy to determine. But Colorado recognizes common law marriages, too.
A common law marriage is established in Colorado by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship and cohabitation as “husband and wife.” People V. Lucero, 747 P.2d 660, 663 (Colo. 1987). It is currently unclear under Colorado law whether a same sex couple who met all of the common law marriage elements prior to the Supreme Court decision in Obergefell v. Hodges, was common law married when they declared themselves to be common law married, or only on June 26, 2015, which was the date of the Obergefell v. Hodges decision.
Maintenance is Affected by Date of Marriage
Under Colorado law C.R.S. Section 14-10-114, maintenance (alimony) for spouses is determined on a case by case basis. There are guidelines, which includes a formula, for judges to consider. The formula does not have to be applied by the judge, but the judge must at least review and consider the formula. The formula takes into account the parties’ incomes, and the duration of the marriage. The maintenance worksheet is JDF 1823, available on the Colorado State Judicial Branch website. Maintenance can be calculated using the form at this link: Calculate Child Support/Maintenance.
If a gay or lesbian couple were in fact and by law common law married long before the Obergefell v. Hodges decision, the duration of the marriage is longer, and the duration of the maintenance (alimony or spousal support) to be paid by one spouse to the other, will likely be longer than it would be if the common law marriage occurred. For example, if a gay couple was common law married in 2000 and were getting divorced in 2016, the marriage would be approximately 16 years. The maintenance formula in C.R.S. Section 14-10-114 provides for approximately 8 years of maintenance.
But if that same gay couple was not common law married until the US Supreme Court decision in Obergefell v. Hodges was issued in 2015, and then the couple divorced in 2016, the maintenance award under the Colorado maintenance formula would not include any maintenance (i.e., no alimony or spousal support). The term of maintenance under the guidelines, calculated in whole months, for marriages of at least three years, is set forth in the statute, C.R.S. Section 14-10-114.
Other Ways for Same Sex Couples to Address Claims for Maintenance if They Had a Long Term Relationship Before the Obergefell V. Hodges Decision
If a gay or lesbian couple cannot claim they were married before the US Supreme Court decision legalizing gay marriage, there may be other ways to help compensate the lower income earning spouse. For example, the lower income earning spouse can seek a greater than 50% division of marital property, or seek to have the higher income earning spouse pay more than 50% of marital debt. Another option is to file a separate tort claim for unjust enrichment, seeking restitution for contributions to the other spouse’s separate property. This type of claim is recognized by the Colorado Supreme Court case of Salzman v. Bachrach.
An additional option is for same sex couples to enter into a written post-nuptial (marital) agreement, that defines what the maintenance (alimony) will be if there is a future divorce. When couples are on good terms with each other, they are more likely to negotiate fair terms for a future divorce.
Same sex couples still face divorce-related challenges that heterosexual couples do not face. Careful divorce planning, post-nuptial agreements, and creative lawyering can help level the playing field.