The Colorado Supreme Court will consider how same-sex common-law marriages should be recognized and defined in the state in a pair of cases to be argued Wednesday.
The court’s rulings could have a broad impact on how disputes about same-sex common-law marriages are handled for years to come. The current standard for defining common-law marriages in Colorado was established three decades ago.
The justices will consider two cases that raise different but related issues. The first case considers whether common-law same-sex marriages that started before same-sex marriage was legalized in Colorado in 2014 are legitimate, while the second case asks the justices to consider whether the state’s decades-old definition of common-law marriage should be adjusted to better apply to same-sex couples.
Attorneys familiar with the cases said this week that the first issue — whether common-law same-sex marriages that predate marriage equality should be recognized in Colorado — was largely answered in 2015 when the U.S. Supreme Court ruled that bans on same-sex marriage were unconstitutional and that same-sex couples should be treated the same as heterosexual couples.
“In Colorado, what that means is just as different-sex couples have always had access to common-law marriage, so to should it be with same-sex couples,” said Mark Gibson, an attorney who represented the Colorado LGBT Bar Association and three other organizations in a filing in the case.
Common law marriage exists in only a handful of states, and several of those states already have recognized same-sex common-law marriages that predate marriage equality, said Cathy Sakimura, family law director for the National Center for Lesbian Rights.
“That question should be easily answered,” she said.
The second, more nuanced case considers what standards Colorado’s courts should use to determine whether a couple was in a common-law marriage when the marriage itself is disputed. This could happen during a breakup — if one person denies being in a common-law marriage — or during the handling of estates, if one person has died and the other person is trying to prove a common-law marriage in order to claim the other’s assets.
A 1987 case that set the standard for determining whether a couple is in a common-law marriage says courts should consider several factors, like whether the couple owned property together, shared bank accounts or filed joint tax returns, if the woman took the man’s last name, whether the couple has children with the man’s last name and whether the couple lived openly as married and presented themselves as married in their communities.
Some of those factors — like the requirement that couples lived openly as married — do not easily translate to same-sex relationships and should be adjusted to better reflect the realities of such relationships, Gibson said.
“We’d like to see the court refine that language to account for the reality that same-sex couples, both historically and presently, often couldn’t be completely open in their relationships because of the danger, discrimination and potential employment ramifications of being open about the relationship,” he said.
But Stephen Plog, attorney for one of the women in the case, argued that the state Supreme Court should not change the 1987 standard because it can be applied to same-sex couples without any adjustments.
“The danger is that same-sex partners who never intended to be married could be boxed in to being ‘married’ if you change (the standard) or adapt it for same-sex couples,” he said.
His client denies that she was ever in a common-law marriage and maintains she simply had a long-term, romantic relationship with her partner — a position that two lower courts agreed with, finding there was no marriage.
Ann Gushurst, attorney for that partner who is appealing the previous findings, said the couple was in fact married and the court’s standards for establishing common-law marriages are often wrongly applied to same-sex couples.
“In the case of same-sex marriages, trial courts have jumped through hoops to not find marriages when they absolutely would have for straight couples,” she said.
Gibson said the organizations he represents don’t want to set up two separate tests for same-sex and straight couples, but rather ensure that the one test that does exist is fair to both types of couples and that judges have clear guidance from the state Supreme Court on how to apply the law.
“So it’s no easier and no harder for a different-sex couple to show a common-law marriage than it is for a same-sex couple,” he said. “But to do that, you have to modify the test in some ways.
One of the tests in the 1987 standard — considering whether couples had filed joint tax returns — was impossible for same-sex couples to do for years, he said.
“They never could have satisfied that factor before 2013, so that is an automatic thumb on the scale against a same-sex couple establishing hat they had a common-law marriage, and that’s not fair,” he said. “There shouldn’t be this imbalance built into the test.”
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