Colorado courts trailblazed the way to a new definition of common law marriage in January 2021. The court’s longstanding view of common law marriage, established in 1987, is now more realistic and less traditional. Previously, Colorado courts factored in several specific markers to establish a common-law marriage. These included questions such as "Did the couple own property together?" "Did they file joint tax returns?" "Did the woman take the man’s last name?" Now, courts take on a more nuanced view of common law marriage, which has implications for same sex couples seeking a divorce.
As more couples eschew home ownership, file taxes separately for student loan reasons and keep their own last names, these indications of “holding themselves out as being married” are less common. In states that still recognize common law marriage, and Colorado is among the nine that do, we're the first to modernize the factors courts consider whether a couple was common-law married.
The new standard is whether they mutually intended to enter a marital relationship and whether the couple’s subsequent conduct supported that decision. Judges must look at the context and totality of the circumstances rather than checking off a list.
Consider how this shift will positively affect same sex couples. Gay couples may not present themselves as married so as not to face discrimination or to keep their relationship status private. Now with the outdated criteria replaced, more same sex couples are able to have their common law marriages recognized, and in the case of divorce, dissolved the same as any other couple. A reminder that a divorce is still necessary whether a couple is legally married or married by common law.
In addition to the main reasons divorce mediation is preferable for couples who split on good terms such as lower cost, less stress, and more control, there are four additional reasons that married or common law married same sex couples should consider divorce mediation.
1. Divorce Mediators, unlike Judges, don’t factor in how long a couple has been common law or legally married when deciding property distribution and maintenance
Same sex unions have only been legal in Colorado since 2013. This would make any legal marriage 7 years which is considered short term. This would disadvantage the lower earning spouse whereas a divorce mediator strives for equity and for the two sides to come to a mutually agreeable way to award maintenance and property.
2. Divorce Mediators Are Not Constrained by the Court's Determination of Who is the Legal Parent
Same sex couples who pursue a traditional lawyer led divorce must adhere to case law to determine who is the legal parent. If you or only your spouse is the child’s legal parent, the other party will need to bring a paternity or maternity petition to obtain custody and visitation. But If the other partner wants to become the child's legal parent, they must formally adopt. If he or she fails to do so, and the couple divorces, the “non-parent” could be completely denied parental rights—even if he or she has been the child’s primary caregiver. Contrast this with divorce mediation where custody and visitation issues are resolved without being limited to the law's view of who is a "legal" parent.
3. Choosing Your Own Divorce Mediator is Preferable than Having An Assigned Judge
Not to generalize, but there are members of any profession who hold a traditional view of marriage. When you are assigned a judge, it’s anyone’s guess whether they will treat your marriage, common law or not, the same as they would a heterosexual couple. Compare this to divorce mediators, who tend to come from a variety of backgrounds. You find the one who is a good fit and they operate as a neutral third party, giving you more control over the divorce process.
4. Divorce Mediation Is Private Unlike an Attorney Led Divorce
It is no one else’s business that you are getting divorced. Divorce mediation recognizes that marriage dissolution doesn’t have to be handled by the same people who prosecute crimes. If you are not out to the general public, your privacy is preserved inside the mediation room.
At the Divorce Resource Centre of Colorado peaceful resolutions are possible through our process that reduces conflict, contention, and cost while bolstering informed decision making and peace of mind. If you are a member of the LGBTQ community and contemplating a divorce or separation, please call our office at (303) 468-5626 or schedule a complimentary consultation with one of our staff.
