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.

Previous Common Law Marriage Indicators Didn't Apply to Gay Couples

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. 

New Common Law Standard Benefits Gay and Lesbian Couples

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 Now with the outdated criteria replaced, more same sex couples are able to have their common law marriages recognized, and in the case of divorce, dissolved the same as any other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.

In this blog post we discuss "how" to tell your kids about divorce, “when” is the best time to tell them, and “what” to say.

Stu Webb, author of “The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids, Without Going to Court” wrote that “even under the best circumstances divorce is fraught with emotions but what is most important is how parents conduct themselves during divorce.”    

Rosalind Sedacca, CDC and founder of Child Centered Divorce is an expert divorce and parenting coach. She has dedicated her professional life to helping parents navigate divorce with the best interests of their children front and center. Through her in person or virtual sessions, e-books and other resources, she has been a great resource for our clients and divorcing families beyond the Denver metro area. 

We asked Rosalind the following questions to get a better idea of the how, when and what to say to your children about divorce.  

Question: How do I cope with the tears, anger and pain that my children will feel? 

Help them put what they are feeling into words and validate those words and let them know that you hear what they are saying and that you understand they’re sad/angry/hurt/confused. Ask follow up questions like, if you’re sad, do you need a little alone time? Or do you want to meet up with a friend? Don’t leave it open ended and say something like, “I know you’re sad, so what should we do about that?” Give them choices so they have control over how they will manage their feelings as they will likely feel a loss of control over what is happening between you and your spouse. 

Question: Should each parent try talking to the kids? 

No, it is imperative to have both parents present when you talk to your children about your divorce. 

Question: Why is it so important to project calm when talking to your children? 

Your attitude is everything and if you come off as anxious, stressed and upset, it is likely your children will sense that and even mimic it. David Code, who wrote the book Kids Pick Up On Everything: How Parental Stress Is Toxic To Kids, has made a career of pulling together the evidence from a handful of labs around the world, which have suggested that parents’ levels of chronic stress can seriously impact a child’s development.

Question: What kinds of messages do kids need to hear from divorcing parents? 

1) "This is not your fault." This is usually an issue for children 7 years old and under. During their early learning years most of their unpleasant experiences were their fault. "Don't touch" Don't hit" etc. They were learning acceptable behavior and the focus was on what they had done wrong. So it is natural to for them to blame themselves for the turmoil in the family.

2) You are and will be safe. Children crave reassurance and even if the word divorce is something they’re familiar with, they need to understand that it won’t place them in any kind of unsafe situation. Especially with young children, change must be approached gingerly as they are very used to “the way things are”

3) We will always be your parents even if we’re not married to each other. 

4) We will always love you even though the love between us has changed. It may help to distinguish between the kind of love between partners and the love children have for their parents. 

5) We are still a family beyond divorce. At the Divorce Resource Centre of Colorado, we recognize that while the marriage ends, the family bonds remain. Divorcing couples trust us to create a post divorce reality that respects these wishes. 

6) We’re working together to move through the divorce process and you can talk to both of us. 

You might need to reiterate the themes more than once, especially for younger children. 

Question: What do I tell them when they start asking 100 questions? 

You don't need to know all the details about who will spend which days with which parent, it’s not about digging into the details at this point, it is about making sure they understand the bigger picture. 

Even with older children, you still want to let them know you hear them and that their feelings are valid. 

It’s not just what you say, but how you say it. 

Remember that co-parenting will last for a lifetime. 

Question: Does divorce talk depend on the child’s age? 

Yes. A great resource that is age specific can be found here.  

Question: When is the best time to tell the child(ren) that we’re getting divorced? 

When you are both on the same page about doing what’s best for the children. You can’t tell them if one spouse doesn’t have respect for the other spouse’s role as parent. If one spouse is angry and unreasonable, the two of you should work on these issues before you can have the conversation with your children.  

Peaceful solutions are possible when you and your soon to be ex-spouse agree to put your personal feelings aside. This is tricky territory for parents and we recommend seeking a divorce coach like Rosalind Sedacca or the Divorce Resource Centre’s divorce coach, Suzanne Chambers Yates to help you approach these emotional issues with the clarity and focus they demand. To discuss divorce coaching services, or mediation in general, call 303-468-5626 or schedule a complimentary consultation

For Important Divorce Documents, Complete the Form Below!

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Forms include: Asset Worksheet, Household Goods Inventory, Financial Checkup, Priorities Worksheet and Mandatory Financial Disclosures.

Regardless of the steps parents have taken to minimize the stress divorce has on their children, some children may need coping tools and post divorce therapy to come to terms with this huge life change. 

The Divorce Resource Centre of Colorado promotes peaceful resolutions and believes mediation is the pathway to changing the way society divorces. Peaceful resolutions are possible not just for the divorcing couple but also for their children. A collaborative divorce can lessen the stress on children of divorce since it often takes less time and children witness their parents coming to an agreement outside of the contentious nature of the courtroom. 

If your child is having problems, how do you know whether they are likely to resolve on their own over time or when it’s time to seek outside help? 

General Clues That Your Child (Probably) Needs Therapy after Divorce

• Your child's symptoms aren't  fleeting and persist over several weeks
• Your child's symptoms interfere with his or her normal functioning 
• Your child's symptoms interfere with the normal functioning of your family
• You feel angry, exhausted, or disappointed with your child a lot of the time
• People you trust have expressed concern 
• Your child asks to see a therapist (unusual, but not unheard of)

Specific Symptoms That Mean Your Child (Probably) Needs Therapy 

• Problems with eating or sleeping with no medical basis (including nightmares that don't go away)
• Excessive difficulties with separation
• A consistently (and persistently) sad or melancholy mood
• Physical complaints with no distinguishable cause (such as headaches or stomachaches) that don't go away with reassurance
• Disinterest in friends or trouble getting along with peers 
• Deteriorating school performance
• Difficulty concentrating
• The new appearance of agitation or fidgetiness 
• Extreme or unrealistic fears/phobias
• Excessive or public masturbation
• New or extreme accident proneness
• Decrease in self-esteem
• Fatigue or apathy with no medical basis
• Excessive weight loss or weight gain with no medical basis
• Aggressive behaviors toward self or others (such as biting, hitting, or scratching)
• Risky or acting out behaviors
• Constant rudeness and "talking back" 
• Heavy drinking or drug use
• Stealing
• Excessive lying
• The appearance of obsessive or compulsive rituals (such as hand washing or pulling out hair)
• Preoccupation with death
• The wish to die ( Important note: If your child expresses a feeling that life is not worth living, get help right away -- do not take it upon yourself to determine if this is a "real" or "serious" problem.)

Bottom line: If you’re unsure, you can schedule a consultation. If your child does not need therapy, a well-trained clinician will tell you. 

The Divorce Resource Centre of Colorado works with various trusted and vetted therapists who practice different methods to address the stress divorce has on children. Please contact us to learn more about these and other divorce professionals whose work compliments mediation. 


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