The Dissolution of Common Law Marriage

Appellate court applies Obergefell ruling retroactively to same-sex couples, suggests abolishing all common law marriage

The Colorado Court of Appeals last week said the state should recognize same-sex common law marriages that existed before the U.S. Supreme Court’s ruling in Obergefell v. Hodges, but perhaps more noteworthy is that one judge on the court urged the state legislature to end common law marriages for all couples.

The court on Thursday delivered its opinion in the case In Re The Marriage of Hoggsett, which agreed with a lower district court that the Obergefell ruling, which said same-sex marriage bans are unconstitutional, should be applied retroactively. The court ruled that retroactivity should extend to common law marriages, as well. In doing so, the district court also said that aspects of same-sex relationships should be taken into account in determining whether a same-sex couple is in a common law marriage. The Court of Appeals agreed on all aspects of the case.

The case involved the end of Edi Hogsett and Marcia Neale’s 13-year relationship. Hogsett believed they were married while Neale disagreed. The district court and Court of Appeals considered whether to apply the test outlined in People v. Lucero, which is used to determine whether a relationship is a common law marriage to a same-sex couple. The three-judge panel of the Court of Appeals said the issue was a novel one, and while both the lower court and appellate court agreed that the test should be applied, with some special considerations, both courts found that Hogsett and Neale were not married. The panel of appellate judges included judges Stephanie Dunn, Rebecca Freyre and David Furman.

According to Lucero, a common law marriage is established if the parties both consent to be husband and wife and follow the open assumption of a marital relationship. The Supreme Court has ruled previously that these criteria can be inferred by conduct such as cohabitation, the general reputation in the community that they are husband and wife, creating joint property ownership, using one last name and filing joint tax returns, among other things.

The district court also said special aspects of same-sex relationships must be considered. 

“In applying Lucero, the district court found that … common law marriage elements, ‘in many ways do not reflect the reality of the situation for same-sex couples,’” Freyre wrote in the unanimous opinion. For instance, they were not allowed to list each other as spouses or file joint tax returns, and couples in same-sex relationships also often refer to each other as partners rather than spouses and do not share last names, she said in the opinion.  

The court acknowledged that the parties exchanged rings at an impromptu ceremony at a bar, though they did not have friends or family present, and they eventually lived together, referred to each other as partners and shared joint bank accounts and financial planning. 

One aspect that indicated that Hogsett and Neale were not married, however, was that when the parties learned a court would need to determine whether a marriage existed before it could be dissolved, both parties agreed to dismiss a joint petition for dissolution of a common-law marriage, which they had agreed to file in order to unravel their finances. Further, Neale gave testimony that she did not believe they were married and did not believe in marriage, which was corroborated by Hogsett and other outside parties. 

“Athough the court found credible Hogsett’s belief that she was married to Neale, it also found credible Neale’s belief that she was never married to Hogsett,” the court wrote. 

While the case was novel for the court, it doesn’t shake the foundation of same-sex marriage. Stephen Plog, an attorney for Marcia Neale, said he saw the court’s ruling not as legally significant but socially important. 

“It creates a bright line saying yes this is O.K.,” Plog said. “I don’t think it opens up the proverbial legal floodgates to anything, but it maybe rights a wrong and makes it clear we’re not going to treat people differently.”

The aspect of the case that might have an impact, though, is Judge David Furman’s special concurrence in which he agreed with the court’s application of Lucero as well as the conclusion that the couple was not married but also encouraged the legislature to abolish common law marriage outright.

“As this case illustrates, common law marriage places a significant and unnecessary burden on the parties and our courts to untangle relationships to determine property (or probate) matters,” Furman wrote. “I believe this is needlessly expensive and unfair to the parties.”

“Because Colorado citizens have physical and legal access to ceremonial marriage, and children born to unmarried parents are afforded the same rights and privileges as those born to married parents, common law marriage is no longer practically or legally necessary,” Furman concluded.

Plog said he agrees with the concurrence and suspects a lot of family law attorneys would agree. “I think [common law marriage] is an antiquated doctrine of law that causes more bad than good. It causes unnecessary litigation, causes confusion, and I’m guessing the judge feels the same way and that’s why the concurring opinion was made,” Plog said. “If we dispensed with it, and the legislature did something to stop it, it would be wonderful for everyone. The only people to lose are attorneys battling over that, and I think attorneys are O.K. with that.” 

— Tony Flesor

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