Bride and groom at an outdoor wedding with blue sky.

Almost two years ago, we wrote about a Colorado Court of Appeals decision where the Court found that all of the evidence of common law marriage had to be considered, and the fact that the parties filed separate tax returns could not be the controlling factor in the face of overwhelming evidence of a marriage. Now, the Colorado Supreme Court has vacated that decision, and remanded the case back to the probate court to consider whether a common law marriage existed in light of its refinements to the common law marriage in Hogsett.1In re: Marriage of Hogsett, 2021 CO 1.

And with the holding in Yudkin,2In re: Estate of Yudkin, 2021 CO 2. the Colorado Supreme Court recognizes that its common law marriage framework needs refreshing to reflect our more multicultural and modern society which does not necessarily conform to past societal standards. In short, while in one relationship the fact that a couple did or did not do something might show their intent to be married, other couples may have different motivations for the exact same conduct.

Facts Regarding Alleged Common Law Marriage

In Yudkin,3In re: Estate of Yudkin, 2021 CO 2. Mr. Yudkin died suddenly without a will, and his ex-wife was appointed as personal representative of his estate. His would-be common law spouse, Ms. Dareuskaya, challenged that appointment.

The facts found by the trial court were corroborated by most of the witnesses and evidence:

  • The couple cohabitated for 8 years.
  • Yudkin presented Dareuskaya with a wedding ring, which she wore daily.
  • Yudkin told Dareuskaya they would be husband and wife if she agreed. She did agree. Note that this was per Dareuskaya’s testimony, and the trial court made no finding on it one way or the other – likely the critical reason why the Supreme Court reversed and remanded.
  • The couple paid bills jointly, but had separate accounts and no shared ownership of assets.
  • The couple held themselves out as married.
  • All of the couple’s family (other than Yudkin’s father), friends and co-workers testified credibly that they believed the couple was married.

The trial judge found the testimony favoring common law marriage credible, and was “convinced” that the couple “agreed to and did hold themselves out to be married to the community.” Yudkin.4In re: Estate of Yudkin, 2021 CO 2, ¶ 8. However, the court then disregarded its own conviction and “gave tremendous weight” to the fact that they filed separate tax returns every year, using this as a reason to question Dareuskaya’s credibility. ¶ 10.

Facts Against a Common Law Marriage

In the end, the trial court found no common law marriage for three reasons:

  • Dareuskaya did not use Yudkin’s surname.
  • The couple did not have any joint assets.
  • “Most convincing is that they failed to file any joint Federal or State Tax Returns during the 8 years they were living together.” Yudkin.5In re: Estate of Yudkin, 2021 CO 2, ¶ 11.

The Court of Appeals reversed the finding of no common law marriage, finding that the two most important factors showing an intention to be married were the ones found satisfied by the trial court – cohabitation and their reputation as being married. Curiously, the Court of Appeals was concerned that a couple could effectively choose to negate an otherwise valid common law marriage by taking a few steps to negate their intent to be married:

“any other actions taken (or not taken) by the parties are legally irrelevant if those two essential factors are established, and that to conclude otherwise might dictate the existence of common law divorce, which Colorado does not recognize.”

Yudkin.6In re: Estate of Yudkin, 2021 CO 2, ¶ 13.

Supreme Court: Need Holistic Approach

The Colorado Supreme Court reversed, finding that it was error for the Court of Appeals to find that cohabitation and reputation as being married were dispositive of the issue of common law marriage.

Common Law Marriage MysteryCommon Law Marriage Mystery

“Courts must consider all factors that might manifest the parties’ agreement, or lack of agreement, to be married… The evidence of cohabitation and reputation in the community do not create a presumption of a common law marriage.”

Yudkin.7In re: Estate of Yudkin, 2021 CO 2, ¶ 18.

While the trial court was clear that the couple had agreed to hold themselves out as married, but its findings were ambiguous as to whether this holding out meant they actually agreed to enter into a marital relationship. Because of this ambiguity, the case was remanded to the trial court to consider all relevant conduct, as set forth in its Hogsett8In re: Marriage of Hogsett, 2021 CO 1. decision, decided the same day.

The court was also directed to consider “the nuances of individuals relationship or family histories, and their religious or cultural beliefs and practices.” Yudkin.9In re: Estate of Yudkin, 2021 CO 2, ¶ 21. The Court explained how why the couple did or didn’t do something is as relevant as what they actually did, concluding it’s incorrect to assume that every couple should act the same:

  • Not every marriage ceremony involves an exchange of rings in front of family & friends.
  • Sharing a last name should no longer weigh against a finding of common law marriage in view of there being any number of reasons for keeping one’s name.
  • A couple may have reasons for separate finances that have nothing to do with whether they consider themselves to be married.

The takeaway? Simply that there can be no cookie-cutter approach to whether there is a common law marriage based upon preconceptions of how a couple should act. Instead of a couple’s conduct speaking for itself, a court is required to do a more individualized inquiry into what a particular couple intended by their conduct:

“The purpose of examining the couple’s conduct is not to test the couple’s agreement to marry against an outdated marital ideal, but to discover their intent.”

Yudkin.10In re: Estate of Yudkin, 2021 CO 2, ¶ 23.

Conduct which may be significant to one couple might be meaningless to another in determining whether a marriage existed. With this, and the Hogsett11In re: Marriage of Hogsett, 2021 CO 1. decision (see our blog post discussing the Hogsett case), common law marriage inquires in Colorado have just gotten more complicated. And the length of our common law marriage article in the Colorado Law Guide attests, the subject was already complicated before this decision muddies the waters further by elevating the issue of subjective intent above that of objective conduct.

As Chief Justice Boatright wrote on his opinion concurring only in the outcome, not the reasoning, this decision “potentially broadens the definition of marriage in a way that I fear will only further confuse the already complex concept of common law marriage.” Yudkin.12In re: Estate of Yudkin, 2021 CO 2, ¶ 25 (Boatright, C.J., concurring).

Award-Winning Common Law Marriage Attorneys in Colorado Springs

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