Jim Flynn

Jim Flynn, Money & the Law

In January, the Colorado Supreme Court decided to revisit the manner in which courts determine the existence of a common law marriage.

The case is Hogsett v. Neale and it arose out of a divorce petition filed by one of the parties to a same sex relationship. (Hogsett, in pursuit of assets controlled by Neale, wanted there to be a marriage. Neale — surprise — did not. Neale prevailed.)

The last time the Supreme Court swam in these murky waters was in 1987, in a case called People v. Lucero. In the Lucero case, the court identified numerous factors it concluded were indicative of a marital relationship. Now, in the Hogsett case, the court has decided the Lucero factors have become “less reliable markers of the boundary” between marriage and non-marriage. (One example is cohabitation, which is now commonplace among people who have no intention of being married and just want to save money.) The court noted that the existence of same sex marriage, which became legal in Colorado in 2014, has substantially contributed to the weakening of the Lucero factors as a test for common law marriage.

Under the rules now established by the Hogsett decision, courts asked to determine whether or not a common law marriage exists must apply a vaguely defined totality of the circumstances test, to wit: “A common law marriage may be established by the mutual consent … of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.” And, “(T)he core query is whether the parties intended to enter a marital relationship — that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation.”

There is interesting history to the existence of common law marriage, including the fact that, during the settlement of the Western part of the country, it was hard to find a justice of the peace or anyone else having authority to legitimize a marriage. So, it became a do-it-yourself project. In all events, only nine states (including Colorado) and the District of Columbia continue to recognize common law marriage. The other 41 states have done away with it entirely, concluding it’s more trouble than it’s worth. (Colorado Supreme Court Justice Melissa Hart wrote a concurring opinion in the Hogsett case urging the Colorado Legislature to end common law marriage .)

As the Hogsett decision makes clear, a common law marriage is just like a licensed marriage, meaning all manner of legal consequences come into play, including laws governing divorce, probate, intestacy, joint tax filings, interests in jointly owned property, rights in retirement accounts and pensions, child custody, social security benefits, medical decision-making, etc. Even criminal law is affected by marriage. That’s because of the spousal communication privilege, which protects intra-spousal communications from compelled testimony in a trial.

From a lawyer’s perspective, at least, because of the uncertainty that surrounds common law marriage, couples should stay as far away from it as possible. They should either apply for a license and get married, or document the fact that they have no intention of being married and have merely chosen to hang out together.