2021 Changes in Common Law Marriage

Introduction

The legal ramifications of a couple’s marital status are significant. Marital status is addressed in state, federal and local civil and criminal law. Marital status can affect civil cases, domestic relations cases and probate cases. Marital status can affect criminal cases, too.

Colorado is one of only a few states that recognize “common law marriage,” which does not require any kind of registration of the marriage. Common law marital status is the source of much legal conflict in the Court system, particularly where one member of the couple believes there was a common law marriage, and the other member of the couple does not believe he or she was married. The issue also arises in probate cases after a death, when a surviving member of the couple or extended family beneficiaries believe that the couple was in a common law marriage.

The Colorado Supreme Court issued three (3) decisions in 2021 that significantly changed the law in Colorado regarding common law marriage:

In re Estate of Yudkin

: This case establishes that whether a common law marriage exists depends on the totality of the circumstances, and no single factor is dispositive.

In re Marriage of Hogsett & Neale

: This case refined the 1987 People v. Lucero common law marriage criteria.

In re Marriage of LaFleur & Pyfer

: This case establishes that a common law same-sex marriage entered in Colorado before the state recognized same-sex couples’ right to marry (same sex marriages were recognized in Colorado in 2014).

As explained in the 2021 Colorado Supreme Court case In re Marriage of Hogsett & Neale, “[t]he 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.”

The other major points in the Hogsett case are: (1) declaring that courts should give weight to evidence reflecting a couple’s express agreement to marry; (2) declaring that in the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct; (3) declaring that when examining the parties’ conduct, the factors identified in the 1987 Colorado Supreme Court Lucero case can still be relevant to the inquiry, but they must be assessed in context (and the Hogsett case adds new criteria); (4) declaring that the inferences to be drawn from the parties’ conduct may vary depending on the circumstances; and (5) declaring that the manifestation of the parties’ agreement to marry need not take a particular form.

Saying the magic words “I do” or “we are married,” and signing a marriage license – is not required for a marriage in Colorado. Instead, if there is a dispute about whether someone is common law married, the court will try to determine if there was conduct manifesting that mutual agreement. That conduct is examined under a totality of the circumstances. Mere agreement to be married is not enough to establish common law marriage. Instead, there must be some evidence of subsequent conduct manifesting that agreement.

Expanding the List of Common Law Marriage Criteria

In People v. Lucero, the Colorado Supreme Court in 1987 identified some common law marriage factors to consider when a heterosexual couple has a dispute about whether the couple is common law married. Some of the Lucero criteria included “mutual public acknowledgement” and “open marital cohabitation,” in every case where common law marriage was alleged. Additional criteria included the parties’ cohabitation, reputation in the community as spouses, maintenance of joint banking and credit accounts, purchase and joint ownership of property, filing of joint tax returns, and use of one spouse’s surname by the other or by children raised by the parties.

However, in the 2021 Hogsett case, the Colorado Supreme Court concluded that (contrary to the Lucero case) that conduct manifesting the parties’ agreement to marry need not take the form of “mutual public acknowledgment,” or “open marital cohabitation” in every case and that there may be cases where, particularly for same-sex partners, a couple’s choice not to broadly publicize the nature of their relationship may be explained by reasons other than their lack of mutual agreement to be married. In such cases, a general requirement to introduce “some objective evidence of the relationship” will sufficiently guard against fraudulent assertions of marriage.

In 2021 in the Hogsett case, the Colorado Supreme Court significantly expanded when a common law marriage can occur, by including this language: “Parties asserting a common law marriage need not prove that they had detailed knowledge of and intent to obtain all the legal consequences that attach to marriage,” and that “the essential inquiry is whether the parties mutually intended to enter a marital relationship.” In other words, even if a person did not necessarily think he or she was “married,” that person could be considered married under Colorado law. According to the Hogsett case, in assessing whether a common law marriage has been established, courts should give weight to evidence reflecting a couple’s express agreement to marry. In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct.

In addition to the Lucero criteria described above (those items may, or may not be indicators of common law marriage, depending on the circumstances in each case), the Colorado Supreme Court in Hogsett said that in addition, a Court should consider: evidence of shared financial responsibility, such as leases in both partners’ names, joint bills, or other payment records; evidence of joint estate planning, including wills, powers of attorney, beneficiary and emergency contact designations; and symbols of commitment, such as ceremonies, anniversaries, cards, gifts, and the couple’s references to or labels for one another. Courts should also consider the parties’ sincerely held beliefs regarding the institution of marriage.

Also, while the inquiry should focus on the couple’s conduct and attitude during the relationship, a party’s behavior when a relationship ends may be instructive. As explained in the Hogsett case:

For example, a partner who asserts a common law marriage years after the couple automatically ascribe marital intent to them without examining other circumstances of the relationship fails to appreciate the diversity of attitudes after the couple broke up has a less credible claim than one who promptly asserts spousal status for dissolution or probate purposes. In addition, conduct inconsistent with marriage that occurs as a relationship is breaking down does not negate a finding of common law marriage where there is evidence of the parties’ earlier mutual agreement to be married. In other words, infidelity, physical separation, or other conduct arising as the relationship is ending does not invalidate a couple’s prior mutual agreement to enter a common law marriage.

To make matters even more complicated, the Court in Hogsett explained:

• …the inferences to be drawn from the parties’ conduct will vary depending on the circumstances. In some cases, the presence of a factor is persuasive evidence of marriage (e.g., the taking of a partner’s last name following a ceremony), while its absence is of no significance. In other cases, the absence of a factor is telling (e.g., the fact that a couple never cohabitated), while the presence of that factor is unhelpful. Finally, the significance of a given factor will depend on the individual, the relationship, and the broader circumstances, including cultural differences. For example, one same-sex couple’s use of the label “partner” may convey “spouse,” while another’s may not. In Spanish-speaking communities, a person’s use of the reference “mujer” may or may not convey “wife….” The court must consider the evidence in all its context.

• Same Sex Common Law Marriage

  In 2015, the U.S. Supreme Court in the Obergefell case mandated that states must recognize same sex marriages the same as heterosexual marriages. But since that time, questions have arisen about whether a common law marriage with a same sex couple could pre-date the 2015 Obergefell decision. Same sex marriages were recognized in Colorado in 2014.

  In In re Marriage of LaFleur & Pyfer, the court addressed the timing issue. The Colorado Supreme Court decided that a court may recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples’ fundamental right to marry because the Obergefell U.S. Supreme Court decision struck down state laws that excluded same-sex couples from civil marriage as unconstitutional. The general rule is that a statute that is declared unconstitutional is void ab initio; it is inoperative as if it had never been enacted.

  No Single Factor Determines Common Law Marriage

  In the 2021 Colorado Supreme Court case in In re Estate of Yudkin, the Colorado Supreme Court applied the updated common law marriage test announced in Hogsett, emphasizing that a common law marriage finding depends on the totality of the circumstances, and no single factor is dispositive. For example, in the Yudkin case, the Colorado Supreme Court found that the lower court (the Court of Appeals) made an error when the Court of Appeals decided that cohabitation and reputation in the community as spouses mandated the conclusion that the couple was common law married regardless of any other evidence to the contrary. The Yudkin decision notes that the lower court’s analysis of common law marriage factors should also take into account the nuances of individuals’ relationship or family histories, and their religious or cultural beliefs and practices.

  Conclusion

  As noted in my article from 2019, Colorado common law marriage can be a blessing or create a complex legal minefield.

  Couples living together who don’t want to be considered common law married should be careful about what they say and do. In addition, couples who don’t want to be considered common law married should consider signing a mutual affidavit swearing they are not common law married. Those couples should also consider having a cohabitation agreement if they want to be clear about their rights and responsibilities during the relationship and upon termination of the relationship. While neither of those actions are required, they might help a court decide common law marriage issues in the future.

  For questions about this article please contact Gregg Greenstein.