The Colorado Supreme Court on Jan. 11 ruled in a trio of cases about common law marriage, resulting in an update to the state’s test for establishing a common law marriage. The refined test is intended to reflect modern social norms about marriage and the experience of same-sex couples.
Two of the cases involve same-sex couples who ended their relationships prior to the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage throughout the country.
The lead case, In re Hogsett v. Neale, involves a relationship between two women, Edi Hogsett and Marcia Neale, that ended in 2014. Hogsett claimed she and Neale were in a common law marriage, which Neale denied. The Court of Appeals applied a test, known as the Lucero test, for establishing a common law marriage in Colorado and found the two were never married.
On appeal, the Supreme Court was asked to decide which factors a court should consider when determining whether a common law marriage exists between same-sex partners.
REFINING THE TEST
In the 1987 case People v. Lucero, the high court found a common law marriage is established 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.”
Under Lucero, if one party denies the marital agreement, as is usually the case, courts can infer consent from the couple’s conduct. Courts can consider factors such as shared bank accounts or property, use of the same surname, joint filing of taxes and testimony from witnesses who believe the couple to be married as evidence of a common-law marriage.
But, as Hogsett and several amici curiae argued, many of the factors fail to account for the realities of same-sex relationships. For example, same-sex couples could not file joint federal tax returns before marriage equality. Other factors courts might consider, such as shared surnames, reflect heteronormative conventions not widely practiced by same-sex couples. Same-sex couples might also be selective about revealing their relationship due to discrimination, making it difficult to show they held themselves out as married to the community or that witnesses believed they were married.
The high court agreed the Lucero test had become outdated and not just for same-sex couples. Many straight married couples do not share a surname or comingle their finances, noted the opinion written by Justice Monica Márquez, while the share of unmarried adults living with a partner has doubled since 1995. Whether a couple has children together is also less helpful today in determining their intent to be married than it was several decades ago, according to the opinion.
“In short, social and legal changes since Lucero make its factors less helpful in sorting out who is ‘acting married,’ and who is not,” Márquez wrote.
The court refined the Lucero test, emphasizing the “importance of the parties’ mutual agreement to enter a marital relationship,” followed by “conduct manifesting that mutual agreement.”
Márquez disavowed Lucero’s use of heteronormative terms such as “husband and wife” but said courts can still look to Lucero factors such as cohabitation, reputation as spouses, tax returns and childrearing arrangements as conduct showing intent to be married.
But courts should also consider things like joint bills or leases, evidence of joint estate planning, beneficiary and emergency contact designations, symbols of commitment, gifts and anniversaries and the parties’ beliefs about the institution of marriage, according to the opinion. The court added that claims asserting a common-law marriage years after the end of the relationship are “less credible” than those made promptly for dissolution or probate purposes.
“Lucero’s assumption that the presence of a particular factor necessarily supports a finding of marriage (or that its absence necessarily weighs against a finding of marriage) can no longer hold,” Márquez wrote. “Instead, the inferences to be drawn from the parties’ conduct will vary depending on the circumstances.”
Hogan Lovells attorney Mark Gibson said he sees the Hogsett decision’s refined test as a “totality of the circumstances approach” that encourages judges to look at all the evidence when making a common-law marriage determination.
“I think it’s useful for lower courts because I think it frees them to look at all of the evidence and, in any particular case, listen to the explanation for why that was,” Gibson said. “If they didn’t live together, for instance, that’s not an automatic deduction from the side of the ledger that says they’re married.”
APPLYING THE TEST
Applying the new test, the court found that no common-law marriage existed between Hogsett and Neale. However, the court did find the existence of a common-law marriage in the second case involving a same-sex relationship, In re Marriage of LaFleur and Pyfer, answering the question of whether same-sex common law marriage was possible before same-sex marriage was made legal in Colorado.
The U.S. Supreme Court’s decision in Obergefell struck down as unconstitutional state laws that excluded same-sex couples from civil marriage, said the majority opinion in LaFleur, also authored by Márquez, and laws deemed unconstitutional should be treated as if they were never enacted.
“[The LaFleur] decision delivers on the promise of Obergefell,” said Gibson, who filed amicus briefs in Hogsett and LaFleur on behalf of several groups, including the Colorado LGBT Bar Association and the Colorado Women’s Bar Association.
“Obergefell promised that same-sex couples should have access to marriage on the same terms and conditions as different-sex couples. And the Pyfer decision ensures that’s the case.”
The court also applied the updated Lucero test in a third case, In Re the Estate of Yudkin. The case involves a dispute over who should be appointed the personal representative of the estate of a man who died without a will — his ex-wife or his partner of several years, who claimed she was his common law spouse.
A probate court had found that no common law marriage existed in Yudkin, based on the Lucero factors, while a division of the Court of Appeals reversed that decision.
The Supreme Court vacated the intermediate court’s decision and remanded the case to the probate court to reconsider under the new Hogsett test.
GOING FORWARD
In its Hogsett decision, the high court recognized that common law marriage determinations “present difficult, fact-intensive inquiries.” “But we have full faith that our judges, who interact daily with Colorado families in all their diversity, can fairly make these sensitive assessments,” Márquez wrote.
Jessica Saldin, an attorney representing Neale, said that while the decision expanded on and “modernized” the Lucero test, the changes shouldn’t present a new challenge for Colorado’s trial judges, who are already experienced at sorting out complex common law marriage disputes. “I think common law marriage in and of itself always required an amount of discretion by the judges, because it was always a very factual analysis,” said Saldin, an attorney with Plog & Stein.
“We have to trust the judicial officers that they will apply the law appropriately when they do these cases.”
Griffiths Law attorney Ann Gushurst, who represented Hogsett, said the court gave “a very thoughtful analysis” that is sensitive to the reality of LGBT clients. But she said the decision could have unintended consequences.
“I think that this case is going to make it much more difficult to prove a common law marriage,” Gushurst said, adding that “trying to figure out if somebody has agreed to be in a legal marriage” — the central question under the refined test — “sets the bar high.”
Hogsett and Neale failed to meet that bar, Gushurst noted, though they exchanged rings, celebrated anniversaries, had joint property and accounts and even filed for divorce and instituted a separation agreement for several months after splitting. “If that couple can’t be considered married, I cannot imagine who can,” she said.
In a concurring opinion in Hogsett, Justice Melissa Hart raised concerns about the “validity of common law marriage going forward” and called for Colorado to “join the overwhelming majority of states” in abolishing it. The doctrine’s application is often unpredictable and inconsistent, Hart wrote, and it ties parties and courts up in costly litigation.
Hart also argued the historical conditions that justified common-law marriage have been eliminated due to changing norms around relationships and the fact that Colorado is no longer a frontier state where couples might have to travel long distances to obtain a marriage license. But Gushurst still sees a role for common law marriage.
“The reason common law marriage was instituted and recognized is because of the exact reason that we have the problem today,” she said, “which is that people would live a married life, and they would rely on that obligation and arrangement” — until one half of the couple decides to leave, sometimes taking all the money and property.
According to Hart, common law marriage has only been incorporated into Colorado’s statutory law to a limited extent. “Given these limited statutory provisions, I believe that the courts could take up the question of whether to continue to recognize common law marriage,” Hart wrote.
“The better course, however, would be for the General Assembly to consider whether the doctrine should be prospectively abolished in the state.”
—Jessica Folker