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February 2021

This article will update the law on common law marriage that was first discussed in an article in May 2019.  This update will focus on three new cases decided by the Colorado Supreme Court in January, 2021: Hoggsett v. Neale, In re Estate of Yudkin, and In re Marriage of LaFleur and Pyfer.

I. Brief Recap

The article on this website in 2019 gave a history of common law marriage in Colorado and focused at length on the leading case at the time, People v. Lucero, a 1987 criminal case involving a defendant who was seeking to keep his common law wife from testifying against him.

In Lucero, the Colorado Supreme Court held the following:

• A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship. “[I]n this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding.”
• We affirm today that such conduct in a form of mutual public acknowledgment of the marital relationship is not only important evidence of the existence of mutual agreement but is essential to the establishment of a common law marriage. The reason for this requirement is to guard against fraudulent claims of common law marriage. As Professor Clark suggests in his treatise on domestic relations, “[a]dding the requirement of open marital cohabitation gives assurance that some objective evidence of the relationship will have to be introduced in every case to establish that the parties did consider themselves husband and wife.” 
• The very nature of a common law marital relationship makes it likely that in many cases express agreements will not exist. The parties’ understanding may be only tacitly expressed, and the difficulty of proof is readily apparent. We have recognized that “the agreement need not have been in words,” and the issue then becomes what sort of evidence is sufficient to prove the agreement. We have stated that if the agreement is denied or cannot be shown, its existence may be inferred from evidence of cohabitation and general repute. In such cases, the conduct of the parties provides the truly reliable evidence of the nature of their understanding or agreement.
• The two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife. Specific behavior that may be considered includes maintenance of joint banking and credit accounts; purchase and joint ownership of property; the use of the man’s surname by the woman; the use of the man’s surname by children born to the parties; and the filing of joint tax returns.  However, there is no single form that any such evidence must take. Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred. 

Following the Lucero case, a number of appellate cases addressed the issue of common law marriage in Colorado but all relied on the basic findings and holdings in Lucero.

Thirty years later, three new cases percolated up through the trial courts and Colorado Court of Appeals that dealt with new societal norms that were not contemplated by Lucero, including the recognition of same sex marriage. When those cases all landed in the Colorado Supreme Court, the Court determined that Lucero needed to be modified in order to recognize the dramatic changes in society that had taken place since 1987.

II. Hoggsett v. Neale—19SC44 (January 11, 2021) 

The Hoggsett case involved a same sex couple.  The trial court found that the evidence did not establish a common law marriage.  The Court of Appeals affirmed, finding that the trial court had property applied the tests in the Lucero case and it and noted that proof of a common law marriage “…turns on issues of fact and credibility, which are properly within the trial court’s discretion.” The opinion also the opinion of the United States Supreme Court in Obergefell v. Hodges applied retroactively in determining whether a common law marriage existed between a same sex couple.

The Colorado Supreme Court refined the test in Lucero and held “…that a common law marriage may be established by mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The 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 ad obligation… [W]hen examining the parties conduct, the factors identified in Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form.”

The Court noted that many of the indicia of a common law marriage under Lucero were no longer useful, especially in a case involving a same sex couple. Same sex couples do not involve a “husband and wife”, they usually do not involve a spouse taking the “husband’s surname”, and same sex couples were precluded from filing joint tax returns until the Obergefell case was announced. The Court also noted that gender based criteria also were no longer dispositive. Today, many unmarried couples live together, have children together, own property together and share bank accounts.

The Court noted: Our refinement retains the core parts of the Lucero test: the centrality of the couple’s mutual consent or agreement to marry, the requirement of some manifestation of consent, and a flexible inquiry into the totality of the circumstances that relies on the factfinder’s credibility determinations and weighing of the evidence.  We emphasize that, as was true under Lucero, a mutual agreement to marry does not alone suffice; there must be some evidence of subsequent conduct manifesting that agreement…[t]he refined test emphasizes the importance of the parties’ mutual agreement to enter a marital relationship.” 

The Court also affirmed the retroactive effect of the Obergefell case and found that same sex couples could enter into a common law marriage prior to the Obergefell decision, even though Colorado did not recognize same sex marriage at the time.

The Court recognized that it’s new test in Hoggsett “…reflects that it is more difficult today to say that a court will know a marriage when it sees one.”

III.  In re Estate of Yudkin 

In this case, the Plaintiff claimed to be the common law wife of the deceased and made a claim to his property in the probate court. At trial, the magistrate found there was no common law marriage. The Court of Appeals reversed and entered a decree of marriage. The magistrate found that the parties agreed to be married, cohabitated, and had a reputation in the community as husband and wife. However, the magistrate found no marriage because the parties did not own property jointly or file joint tax returns. The Court of Appeals found that the magistrate misapplied the rule in Lucero. It found that the evidence of marriage was “overwhelming”and that the magistrate gave too much weight to the fact they did not file joint tax returns or own joint property. The Court of Appeals held that once the magistrate determined, as he did, that the parties agreed to be married, cohabitated, and had a reputation in the community as husband and wife the inquiry should have ended.

The Supreme Court in Yudkin applied the updated test in Hoggsett and found that the Court of Appeals had given too much weight to the outdated factors in Lucero and reversed the case and remanded it back to the trial court for further hearing an application of the new refined test in Hoggsett. The Court found that the findings of the magistrate were ambiguous on the key factors in the Hoggsett case and emphasized that the examination of the case must be on “the totality of the circumstances and no single factor is dispositive.”

IV. In re Marriage of LaFleur and Pyfer

The LaFleur and Pyfer case involved a same sex couple.  Pyfer alleged a marriage ceremony in 2003, long before Colorado or the US Supreme Court recognized same sex marriage. LaFleur testified he never intended to be married. Following an evidentiary hearing, the trial court found that the parties had entered into a common law marriage and proceeded to enter orders on the division of property and debt and maintenance. Both parties appealed.

The Supreme Court found that even though the marriage ceremony took place long before any legal recognition of same sex marriage, the Obergefell case has the effect of voiding any law prohibiting same sex marriage ab initio, meaning the law was void from its inception and is treated as if it never existed. The Court applied the new refined test in the Hoggsett case to the facts and affirmed the trial court’s finding that a common law marriage did exist. However, the Supreme Court reversed the trial court’s order on the property division and support issues and remanded it back to the trial court for further findings.

V. Practical Considerations 

• The burden of proof is on the party asserting a common law marriage.  The new cases do not change that. What the new cases do is make it more difficult for a court in a given case to “…know a marriage when it sees one.” Each case will be very fact intensive, even more so than in the past.

• There is no set length of time for the co-habitation to turn it into a common law marriage.  Urban myths exist claiming that living together for 5, or 7 or 10 years make a co-habitation a common law marriage. Like alligators living in the sewer and photos of Elvis at the Burger King, these are myths. What is important is the intent to be married and now under the Hoggsett case, the evidence that manifests that intent to be married.

• Evidence of tax returns filed as a single person or as a married couple during the time of the alleged marriage will likely have less weight than in the past, especially for same sex couples who claim a marriage pre-Obergefell. Tax return evidence may still be probative in cases where the couple could legally file jointly at the time of the alleged marriage. Other documents that may establish or defeat a claim of common law marriage are loan applications, applications for insurance, wills, and other written designations stating that the parties either are or are not “married” or are “spouses”. The key inquiry is whether the evidence supports the claim that the parties agreed to and entered into a marital relationship.

• Ownership of property in both names (real estate, bank accounts, etc.) generally is not a smoking gun unless there is also evidence that the parties are “married” or are “spouses”.

• If there is jointly owned property but no marriage the petition for dissolution of marriage will likely be dismissed and further legal action may be necessary to fairly divide the jointly owned property, i.e., a civil action for replevin or for partition or sale of real estate.

• Other legal remedies include equitable actions for unjust enrichment or the creation of a constructive trust. See Salzman v. Bachrach, 996 1263 (Colo App. 2000); IRM Heinzman, 596 P2d 61 (Colo. App. 1979).

• If two people wish to live together but do not intend to be married it may be wise to enter into a written co-habitation agreement.  Such an agreement can spell out their agreements with respect to any real estate, cars, bank accounts, investments, debts, credit cards, sharing of expenses, etc.