January 11, 2021 was a big day for common law marriage in Colorado. The first three decisions issued this year by our Supreme Court were all on the issue of common law marriage. This article focuses on the first of those decisions, Hogsett,1In re: Marriage of Hogsett, 2021 CO 1. where the Court significantly revised its 33 year-old Lucero2People v. Lucero, 747 P.2d 660 (Colo. 1987). standard for determining the existence of a common law marriage.
We have also written posts on the other two decisions issued that same day:
- Yudkin,3In re: Estate of Yudkin, 2021 CO 2. where, as we discuss in our blog post, the Court held that a common law marriage inquiry must consider the couple’s intent behind their conduct, and not reject the existence of a marriage because a couple did not conform to potentially outdated societal norms of marriage which may be culturally irrelevant to a particular couple.
- LaFleur,4In re: Marriage of LaFleur, 2021 CO 3. where the Court held that a same-sex could intend to enter into a common law marriage at a time when same-sex marriages were illegal in Colorado. See our blog post discussing this milestone.
- Time to Revisit Lucero Common Law Marriage Factors
- Hogsett Procedural History
- Common Law Marriage vs Ceremonial Marriage
- Lucero Common Law Marriage Factors Outdated
- New Common Law Marriage Test
- Relevant Factors to Determine a Common Law Marriage
- Date of Common Law Marriage Needed
- Applying Factors, Couple in Hogsett Had No Common Law Marriage
- Concurring Opinion – Consider Factors Only if Disagreement as to Intent
- Time for Colorado to Abolish Common Law Marriage?
Time to Revisit Lucero Common Law Marriage Factors
Hogsett is the big decision, as it overturns 33 years of precedent to set a new standard for common law marriage. As the Court notes right at the outset of the decision:
“Each of the three cases before us involves a disputed common law marriage claim. Together, they illustrate how much has changed since our decision in Lucero… The gender-differentiated terms and heteronormative assumptions of the Lucero test render it ill-suited for same-sex couples. More broadly, many of the traditional indicia of marriage identified in Lucero are no longer exclusive to marital relationships. At the same time, genuine marital relationships no longer necessarily bear Lucero‘s traditional markers.”Hogsett.5In re: Marriage of Hogsett, 2021 CO 1, ¶ 2.
While the factors from Lucero are still relevant to examine the conduct of the parties, they must be taken in context, as different couples may mean different things.
Hogsett Procedural History
There were actually two dissolution of marriage cases arising from the same-sex relationship of Hogsett and Neale. The relevant procedural facts are:
- Hogsett and Neale had a 13-year same-sex relationship from 2001 through November 2014.
- Though the couple never formally married, same-sex couples could not have done so in Colorado prior to October 2014.
- The couple subsequently filed a joint petition for dissolution of marriage, and in their separation agreement stipulated to a same-sex common law marriage from 2002 onwards.
- The couple subsequently settled their outstanding issues in a signed separation agreement at mediation, and the court adopted their stipulation to dismiss the dissolution of marriage case.
- Hogsett later sought certain assets and maintenance she claimed was owing per their separation agreement, while Neale now claimed no marriage ever existed.
- Hogsett therefore filed a second petition for dissolution of marriage, which is the one at issue in this case.
- The trial court found that it could recognize a same-sex common law marriage which was entered into Colorado prior to the state recognizing the existence of same-sex marriages, however under the facts of this particular case, no common law marriage existed.
- The Court of Appeals affirmed, agreeing that a common law marriage could predate the legalization of same-sex marriages in Colorado, and it affirmed the finding that no common law marriage existed when applying the Lucero factors to this case. See our blog post on same-sex common law marriages for the Court of Appeals decision.
Common Law Marriage vs Ceremonial Marriage
The Court note that Colorado recognizes two ways to enter into marriage:
In Colorado, a legally recognized marriage can be achieved two ways: formally, by fulfilling the statutory requirements of licensed marriage, or informally, by entering a common law marriage through mutual agreement of the parties followed by assumption of a marital relationship. Couples seeking a licensed marriage must pay a marriage license fee, obtain approval of the license, and return the marriage certificate and license within sixty-three days of solemnization. Common law marriage, by contrast, lacks these formalities solemnizing the relationship.Hogsett.6In re: Marriage of Hogsett, 2021 CO 1, ¶ 28 (Cleaned Up).
Noting that most states have abolished the doctrine of common law marriage, and “many believe the doctrine has outlived its usefulness” the Court highlighted out the historic and current rationales for accepting common law marriage:
- It allows children of the union to be legitimate (a historic reason).
- It helped ensure “abandoned women” would not require public assistance.
- It protected vulnerable spouses who relied upon a long-term relationship which was never formalized.
- It provides a pathway to marriage for marginalized groups such as undocumented immigrants and, as this month’s decisions show, same-sex couples.
Lucero Common Law Marriage Factors Outdated
The Court noted that the seminal Lucero decision, relied upon by every court in the past 33 years to determine the existence of a common law marriage, was a product of its times, and that “the factors we identified in 1987 have become, over time, less reliable markers to distinguish marital from nonmarital relationships.” Hogsett.8In re: Marriage of Hogsett, 2021 CO 1, ¶ 36.. While particularly outdated with respect to same-sex couples, Lucero also needed updating for all couples to reflect a changing society:
“But more broadly, as the three cases before us today make clear, many of the traditional indicia of marriage identified in Lucero are no longer exclusive to marital relationships, while at the same time, bona fide marriages today do not always bear Lucero‘s traditional markers. In short, social and legal changes since Lucero make its factors less helpful in sorting out who is “acting married,” and who is not.”Hogsett.9In re: Marriage of Hogsett, 2021 CO 1, ¶ 36.
Lucero Inapplicable to Same-Sex Common Law Marriages
As this was a same-sex marriage case, the Court focused first on same-sex common law marriages, noting a “mismatch between the Lucero test and the claims of same-sex spouses.” Hogsett.10In re: Marriage of Hogsett, 2021 CO 1, ¶ 38. Examples of this include:
- A couple could not hold themselves out as married on taxes and other legal documents prior to the legalization of same-sex marriage.
- The “holding out” requirement may be impracticable, and even potentially dangerous, for a same-sex couple, given their precarious legal and social status.
Lucero Factors No Longer Reliable to Determine Common Law Marriage
“Public norms have evolved since 1987. As a result, the factors we offered in Lucero to distinguish between marital and nonmarital relationships have become less reliable markers of that boundary.” Hogsett.11In re: Marriage of Hogsett, 2021 CO 1, ¶ 41. Examples of this include:
- Many unmarried couples now live together, so “cohabitation is no longer synonymous with marriage.” ¶ 42.
- “It is becoming more common and technologically feasible for spouses to live apart.” ¶ 43.
- Child-rearing outside of marriage is now common, while many married couples choose not to procreate. ¶ 44.
- While changing a name upon marriage is still common, “there may be any number of reasons, including cultural ones, that spouses and children do not take one partner’s name at marriage.” ¶ 45.
- Maintaining joint finances is not as widespread as it once was, and lower-income families may not even have bank accounts. ¶ 46.
- Property may be titled in just one party’s name due to credit issues, rather than it reflecting an intent to be unmarried. ¶ 46.
- Even the symbols of marriage mean different things to different couples – “Not every expression of commitment to a partner constitutes an agreement to enter into a marital relationship. Nor does every marriage ceremony involve an officiated exchange of vows before family and friends at a place of worship.” ¶ 47.
New Common Law Marriage Test
“We therefore hold that a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.”Hogsett.12In re: Marriage of Hogsett, 2021 CO 1, ¶ 49.
Notice what’s missing? Lucero‘s requirements that the couple hold themselves out as married, or that they cohabitate.
“The 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. 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. When examining the parties’ conduct, the factors identified in Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form.”Hogsett.13In re: Marriage of Hogsett, 2021 CO 1, ¶ 49.
So instead of any particular method of proof, “some objective evidence of the relationship will sufficiently guard against fraudulent assertions of marriage.” ¶ 51. But the refined test is a reflection of our more complicated world: “it is more difficult today to say that a court will know a marriage when it sees one.” ¶ 53.
Relevant Factors to Determine a Common Law Marriage
Some of the factors discussed in Lucero may still be relevant, not as objective proof for or against marriage, but as part of a totality of the circumstances to determine whether the parties intended to be married. Relevant factors now include:
- Reputation in community as married
- Joint bank & credit card accounts
- Joint ownership of property
- Joint tax returns
- Using the other spouse’s surname for yourself or your children
- Evidence of shared financial responsibility (lease, joint bills, etc.)
- Joint estate planning (wills, powers of attorney)
- Beneficiary & emergency contact designations
- Symbols of commitment (ceremonies, anniversaries, cards, gifts)
- Couple’s labels for one-another
- Couple’s “beliefs regarding the institution of marriage”
- The couple’s behavior when the relationship ended – a common law marriage claim asserted years later is less credible than one asserted more promptly.
Hogsett.14In re: Marriage of Hogsett, 2021 CO 1, ¶¶ 55-57. However, unlike Lucero which held that the these factors were actual evidence of marriage, Hogsett holds that they may only be considered as evidence of whether that particular couple, based upon their own unique circumstances, intended to be married:
“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. Instead, 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.” Mujer, Real Academia Española, Diccionario de la Lengua Española, 23d ed., https://dle.rae.es/mujer [https://perma.cc/84A9-4YNQ] (defining “mujer” as both “person of the female sex” and “wife or female partner”). The court must consider the evidence in all its context.”Hogsett.15In re: Marriage of Hogsett, 2021 CO 1, ¶ 59.
Date of Common Law Marriage Needed
Finally, the court must establish the date of the common law marriage. Normally if a legal impediment is the only thing stopping a marriage (e.g. one party is still married), the effective date of marriage is when that impediment was removed. However, for same-sex couples, the Court’s contemporaneous decision in LaFleur16In re: Marriage of LaFleur, 2021 CO 3. holds that using the date the marriage became legal unconstitutionally discriminates against same-sex couples.
Applying Factors, Couple in Hogsett Had No Common Law Marriage
After 60 paragraphs discussing the new test for a common law marriage, the Court needed just 9 paragraphs to affirm the Court of Appeals decision that the couple at issue had no marriage. And as the first ever case to apply the new factors, it is instructive to see how so many of the factors seat froth in Lucero really do not apply to this particular same-sex couple:
- Exchange of Rings. The couple exchanged rings in a bar with no family, just bar patrons present. And Neale testified the exchange was to express their commitment, not a marriage. Finally, the couple did not establish an anniversary date based upon that exchange, nor even consistently wear their rings, rendering the exchange inconclusive on the issue of common law marriage. ¶¶ 62-63.
- No Reference to Marriage. The couple never referred to each other as “wife”, nor mentioned their supposed marriage in any of the letters they exchanged with each other, and while Hogsett referred to Neale as “wife” in her letters to family & friends, Neale never did the same, thereby showing she never intended to be married. ¶ 64.
- No Evidence Couple Hid Relationship for Fear of Disapproval. This couple were not “closeted gays or lesbians”, but openly shared the nature of their relationship with others, so there was no fear of discrimination causing them to hide the truth. ¶ 64.
- Cohabitation & Joint Home/Finances, showed they had a committed relationship of mutual support, but not necessarily a marriage. And while Hogsett listed Neale as beneficiary on her retirement accounts and next of kin on medical records, Neale did not do the same. ¶ 65.
- Legal Documents. Since the parties could not legally claim to be married at the time, the absence of joint tax returns, and calling themselves single on medical records “contributes little to the inquiry.” ¶ 66.
- Failure To Formally Marry Where Same-Sex Marriage Was Legal. The Court of Appeals found significant the fact that the couple did not travel to a state where same-sex was legal and marry there, but the Supreme Court disagreed: “A couple’s decision not to formally marry does not reflect lack of intent to enter a common law marriage.” ¶ 66.
- Behavior At End of Relationship. As noted above, this couple did initially file jointly for dissolution of marriage, and negotiated a separation agreement, which may be evidence of their intent to be married. The trial court found credible Neale’s testimony that the petition was Hogsett’s idea, and Neale’s sole intent was to separate their finances, but she received bad advice that a formal divorce was necessary to do this. Accordingly, this factor was inconclusive. ¶ 67.
- One Spouse Not “Believe in Marriage.” The trial court found Neale testified credibly that she does not believe in marriage or two people making a lifelong commitment to one-another.
Hogsett is an example of the adage “it takes two to tango.” Sadly, while the evidence was that one partner (Hogsett) sincerely believed she was married, the other partner (Neale) sincerely believed they were not married. Thus, despite some of the marriage factors being present, without a meeting of the minds there could be no agreement to marry, and therefore no common law marriage.
In short, the factors do not prove whether there is a common law marriage, but were simply evidence from which a court could infer whether the intended to be married.
Concurring Opinion – Consider Factors Only if Disagreement as to Intent
Chief Justice Boatwright wrote an interesting concurrence, accusing the majority of overreaching by unnecessarily announcing new common law standards. Because in Hogsett, both parties agreed that Neale did not intend to be married, that should have been the end of the inquiry, with no need to consider the factors for a common law marriage:
“The factors for establishing common law marriage become relevant only when there exists a credible disagreement between the parties about their intent to be married. If, however, there exists no credible disagreement, then the factors are irrelevant.”Hogsett.17In re: Marriage of Hogsett, 2021 CO 1, ¶ 80 (Boatright, C.J., concurring).
Boatright was also concerned that the Hogsett decision, by promulgating factors, but then saying they are “not necessarily dispositive proof of a marital relationship… potentially broadens the definition of marriage in a way that will cause additional confusion.” Hogsett.18In re: Marriage of Hogsett, 2021 CO 1, ¶ 85 (Boatright, C.J., concurring).
Time for Colorado to Abolish Common Law Marriage?
Just as a concurring judge in the Court of Appeals wrote that Hogsett showed why it was time for Colorado to end common law marriage, so too did Justice Hart at the Supreme Court Level. He wrote:
“I write separately to express my concerns regarding the validity of common law marriage going forward. The historic conditions that once justified the need for the doctrine are no longer present, its application is often unpredictable and inconsistent, and it ties parties and courts up in needlessly costly litigation. It is my view that Colorado should join the overwhelming majority of states and abolish it.”Hogsett.19In re: Marriage of Hogsett, 2021 CO 1, ¶ 71 (Hart, J, concurring).
Portraying common law marriage as a vestige of America’s outdated colonial, then frontier past, Justice Hart reasoned:
“Today’s world looks very different-socially, legally, and practically-than the world did when common law marriage was a majority rule among the states. The paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders.”Hogsett.20In re: Marriage of Hogsett, 2021 CO 1, ¶ 73 (Hart, J, concurring) (Cleaned Up).
Quoting from the South Carolina Supreme Court decision abolishing common law marriage, he continued: “In prospectively abolishing common law marriage in its state, the South Carolina Supreme Court noted that this confusion has transformed the doctrine into a ‘mechanism which imposes marital bonds upon an ever-growing number of people who do not even understand its triggers.'” ¶ 74. Justice Hart urged the Colorado Assembly to abolish the doctrine of common law marriage.
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