On November 30, 2003, same-sex partners T.P. and D.L. held a ceremony before family and friends where they exchanged vows and rings. Approximately 15 years later, T.P. and D.L. ended their relationship.

T.P. filed a divorce petition in the Jefferson County District Court in Colorado asserting that he and D.L. had entered into a common law marriage on November 30, 2003, the date of their ceremony. But D.L. argued in the dissolution case that it was impossible for him and T.P. to have entered into a common law marriage because same sex marriages were not recognized or protected under Colorado law at the time of their ceremony. D.L. further claimed that he and T.P. did not mutually agree to enter into a common law marriage as required under Colorado’s common law marriage test existing at the time of their divorce case.

T.P. and D.L. participated in an evidentiary hearing in the district court where they each testified and also called several family members and friends to testify about their relationship.

At the hearing, T.P. presented the following evidence to support his claim that he and D.L. had entered into a common law marriage on November 30, 2003:

  • T.P. proposed marriage to D.L. and T.P. intended to be married;
  • D.L. accepted T.P.’s proposal of marriage in front of T.P.’s sister;
  • T.P. and D.L. participated in a ceremony in which they exchanged vows and rings before family and friends;
  • T.P. and D.L. signed a document titled “Certificate of Holy Union”;
  • T.P. “held himself out as married to family and friends”;
  • T.P. identified D.L. as his spouse on a human resources form in 2016 and on a vehicle in 2017;
  • D.L. knew that T.P. was identifying D.L. as a spouse on documents, T.P. was telling family and friends that they were married, and D.L. never told T.P. to stop doing these things;
  • D.L. financially supported T.P.; and
  • T.P. and D.L. cohabitated and shared the same room until “the last couple of years” before T.P. filed the dissolution of marriage petition.

When it came time for his turn at the hearing, D.L. presented the following evidence, which he believed demonstrated that a common law marriage with T.P. never existed:

  • D.L. never intended to be married;
  • D.L. would not have participated in the November 30, 2003, ceremony if it would have been legally binding with regards to his assets;
  • T.P. and D.L. rarely wore their wedding rings;
  • T.P. and D.L. did not share bank accounts;
  • D.L.’s family denied that T.P. and D.L. were married and “minimized the impact of the ceremony”; and
  • D.L. did not tell his co-workers that he was married.

District Court Ruling

After considering both parties’ evidence, the district court found that even if D.L. “did not want all of the legal obligations that come with a marriage,” D.L. “acquiesced when he accepted [T.P.’s marriage] proposal and went through with their ceremony” and “intended to be joined with [T.P.] for the rest of his life” on the date of the ceremony. After making these findings of fact, the district court then continued on with the divorce case and entered a dissolution decree and permanent orders, including:

  • $50,000 of D.L.’s Roth IRA would be distributed to T.P.;
  • D.L. and T.P. would each pay the debts accrued in their own names; and
  • D.L. would pay spousal maintenance to T.P. in the amount of $700 per month (which was lower than what Colorado’s spousal maintenance guidelines provided) because T.P. had “lived rent-free” with D.L. and T.P. was involved in an extramarital affair towards the end of their relationship.

Colorado Supreme Court Review and Decision

Because the Colorado Supreme Court was at the time reviewing two other cases with similar facts and circumstances, D.L. asked the supreme court to review his and T.P.’s case as well under Rule 50 of the Colorado Rules of Appellate Procedure. This rule allows the Colorado Supreme Court to review cases before the Colorado Court of Appeals has reviewed a district court order or entered a judgment if, among other criteria, “the case involves a matter of substance not yet determined by the supreme court of Colorado,” and “the case is of such imperative public importance as to justify the deviation from normal appellate processes and to require immediate determination in the supreme court.” The supreme court granted D.L.’s request and agreed to review his and T.P.’s case.

T.P. argued to the Colorado Supreme Court that the district court had abused its discretion in the following ways:

  • the district court’s division of property was inequitable and not supported by sufficient factual findings; and
  • the district court’s maintenance award was an unjustified downward deviation from Colorado’s spousal maintenance guidelines.

In response, D.L. challenged the district court’s rulings that he and T.P. had entered into a common law marriage. In particular, D.L. claimed that it was impossible for him and T.P. to have entered into a common law marriage before the U.S. Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015) was announced in 2015 because:

  • he and T.P. could not have formed the required intent to enter into a common law marriage when same-sex marriage was not legally recognized in Colorado on the date of their ceremony on November 30, 2003; and
  • the U.S. Supreme Court’s decision in the Obergefell case did not have retroactive effect, meaning it did not apply to situations before 2015 when the U.S. Supreme Court announced its Obergefell decision.

The Colorado Supreme Court framed T.P. and D.L.’s dispute as “whether a court may recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples’ fundamental right to marry.” In re Marriage of LaFleur & Pyfer, 2021 CO 3, ¶ 32. The Colorado Supreme Court agreed with T.P. and held that common law marriages entered into by same-sex couples are not only valid now, but they were valid even before the U.S. Supreme Court announced its Obergefell decision. In other words,

because Obergefell held that states must allow same-sex couples to enter marriages on the ‘same terms and conditions as opposite-sex couples,’ and because Colorado recognizes common law marriages between opposite-sex couples, it must also recognize such marriages between same-sex couples–including those entered into pre-Obergefell.

LaFleur, ¶ 34 (quoting Obergefell, 576 U.S. at 676) (internal citation omitted) (emphases in original).

Requirements for a Common Law Marriage in Colorado

A common law marriage may be established and will be recognized in Colorado by:

  • mutual consent or agreement of the couple to enter the legal and social institution of marriage, and
  • the mutual consent or agreement is followed by conduct manifesting that mutual consent or agreement.

The key question when considering whether a common law marriage exists 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.'” LaFleur, ¶ 4 (quoting In re Marriage of Hogsett & Neale, 2021 CO 1, ¶ 49. The “focus is on whether the parties intended to enter into a relationship that is marital in nature.” LaFleur, ¶ 39 (emphasis added).

The Colorado Supreme Court agreed with the district court “that the record supports the district court’s conclusion that [T.P.] and [D.L.] manifested a mutual intent to enter into a marital relationship.” In particular, the supreme court focused on the “evidence of an express agreement to marry” and the following findings from the district court:

  • T.P.’s proposal of marriage to D.L., which D.L. accepted;
  • the parties’ participation in a ceremony that “certainly appear[ed] to be a wedding” where T.P. and D.L. exchanged vows, rings were exchanged, tuxedos were worn, a reverend officiated, a toast was given, and friends and family attended; and
  • T.P. and D.L. signed a document titled “Certificate of Holy Union,” which is similar to signing a marriage license.

The supreme court also found that in addition to the “express agreement” to enter into a common law marriage, there was evidence supporting a finding that “a mutual agreement to enter into a marital relationship may be inferred.” For example,

  • T.P. and D.L. cohabitated;
  • D.L. financially supported T.P.;
  • T.P. identified D.L. as his spouse on several forms; and
  • T.P. “held himself out as married to family and friends” with D.L.’s knowledge that he was doing so.

Based on these findings, the Colorado Supreme Court was persuaded, and it affirmed the ruling of the district court that T.P. and D.L. had entered into a common law marriage on November 30, 2003.

Then, after it determined that T.P. and D.L. had entered into a common law marriage in Colorado, the Colorado Supreme Court turned its attention to the district court’s decisions regarding property division and distribution and spousal maintenance, where the supreme court found some errors were made.

Allocation of Marital Assets and Debts

While the division of property in a Colorado divorce case “is left to the district court’s discretion,” an appellate court like the Colorado Supreme Court can reverse–or overturn–a district court’s ruling if “there has been a clear abuse of discretion” on the district court’s part that “affects the substantial rights of the parties.”

The division of property requires a “multi-step analysis” described in C.R.S. § 14-10-113, which includes:

  • determining whether an interest constitutes property,
  • classifying property as marital or separate, and
  • valuing and equitably distributing the marital property after considering all of the statutory factors set forth in C.R.S. § 14-10-113.

The statutory factors that must be considered include:

  • each spouse’s contribution “to the acquisition of the marital property, including the contribution of a spouse as homemaker,”
  • “[t]he value of the property set apart to each spouse,” and
  • each spouse’s economic circumstances “at the time the division of property is to become effective.”

The supreme court concluded that it wasn’t clear whether the district court did the necessary analysis, including whether the $160,000 increase in the value of D.L.’s home was marital property and whether D.L.’s multiple retirement accounts were separate or marital property. The district court and D.L. also never traced the contents of the retirement accounts, which is a requirement to successfully claiming separate ownership of the accounts, and the district court did not consider or rule on which debts that accumulated during T.P. and D.L.’s common law marriage were separate or marital debts.

The Colorado Supreme Court was “unable to determine whether the district court’s property division was inequitable.” Therefore, the supreme court set aside the property division and remanded the case to the district court to “conduct the multi-step analysis by classifying each item of property as separate or marital, valuating the property, and considering the statutory factors identified in section 14-10-113.” LaFleur, ¶ 65.

Award of Spousal Maintenance

Because the district court did not explain how it arrived at its decision to divide T.P. and D.L.’s property, the Colorado Supreme Court instructed the district court to reconsider whether a different spousal maintenance award was required.

Spousal maintenance and property distribution are “interdependent,” and “awards of spousal maintenance…flow from the property distribution.” Whenever a district court must “revisit a property division, it must also reevaluate [the] maintenance…award[] in light of the updated property division.”

Colorado’s spousal maintenance statute is detailed, and some of the specific factors that a district court must consider when determining whether maintenance should be awarded to a spouse include:

  • the amount of each party’s gross income;
  • the marital property apportioned to each party;
  • the financial resources of each party, including but not limited to the actual or potential income from separate or marital property;
  • reasonable financial need as established during the marriage; and
  • whether maintenance awarded would be deductible for federal income tax purposes by the payor and taxable income to the recipient.

There are numerous factors that affect the amount and term of maintenance that a district court may award and include but are not limited to:

  • the financial resources of the spouses;
  • the spouses’ lifestyle during marriage;
  • the distribution of marital property;
  • both parties’ income and employability;
  • the duration of the marriage; and
  • “[a]ny other factor that the court deems relevant.”

See C.R.S. § 14-10-114(3)(c)

The Colorado Supreme Court instructed the district court on remand to “follow the detailed procedure set forth in section 14-10-114, making explicit factual findings where required and addressing the factors relevant to its determination.” LeFleur, ¶ 66.

Lessons Learned

  • Same-sex common law marriages in Colorado are valid even if they were entered into before 2015 when the U.S. Supreme Court struck down state laws that excluded same-sex couples from civil marriage as unconstitutional.
  • Colorado district courts must engage in a multi-step analysis when dividing and distributing property in a Colorado divorce case, including determining whether an interest constitutes property, classifying the property as marital or separate property, and valuing and equitably distributing the property to the parties.
  • Because awards of spousal maintenance and property distribution are interdependent and “awards of spousal maintenance…flow from the property distribution,” whenever a Colorado appellate court instructs a district court to reconsider a division of property in a dissolution of marriage case, the district court must also reconsider its award of spousal maintenance.
  • When a Colorado district court decides to award spousal maintenance, it must follow the detailed procedures described in C.R.S. § 14-10-114, make explicit factual findings where required, and address the factors relevant to its decision.