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Same Sex Marriage in Colorado

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By: Jessica A. Bryant

Recently, the United States Supreme Court found that laws prohibiting same sex marriage, as well as laws refusing to recognize same sex marriages validly performed in another state, are unconstitutional,  as they violate the Fourteenth Amendment. This ruling, Obergefell v. Hodges, however, generated many more questions about the effect the ruling would have nationwide and in each individual state. In Colorado, questions have arisen about whether the decision is to be applied retroactively or prospectively and what effect the ruling will have as relates to common law marriages.

Prospective v. retroactive application:

In Obergefell, the Supreme Court did not indicate whether its holding would apply retroactively (with past effect) or only prospectively (from the date of the ruling forward). If it were to apply retroactively, it would allow couples married in another state to have their marriages validly recognized in Colorado back to the date of marriage in the other state. The benefit of such is that the couples might be able to obtain spousal benefits back from the relevant date of marriage. There is no absolute rule as to whether Supreme Court decisions always apply retroactively or only prospectively. The general understanding is that an unconstitutional statute is void from its origin. In this instance, since the Court found any statutes banning same sex marriage and refusing to recognize same sex marriage are unconstitutional under the Fourteenth Amendment, it is possible such statutes will be considered void. Under such consideration, the same sex marriages would be recognized retroactively. However, the Supreme Court has previously, on an unrelated matter, issued a three part test to determine when a Court ruling should be applied prospectively. A court is to consider whether it is an issue of first impression (being heard for the first time), whether applying the ruling retroactively will aid or impede its intent, and whether applying the ruling retroactively could lead to substantially inequitable results. In other words, it is not guaranteed that the ruling will be applied retroactively. Colorado has not yet determined whether the ruling will be applied prospectively or retroactively.  However, the Social Security Administration has indicated it will be applying the rule retroactively (allowing for Social Security benefits for same sex couples back to the initial date of marriage).  Retroactive acknowledgement of previously created same sex marriage creates a new array of considerations legal issues for Denver divorce attorneys to deal with.

Common Law Marriage:

The issue of prospective v. retroactive application is especially unique in Colorado because of the ability to be married in common law. Colorado is one of a few states that recognizes and allows for common law marriage. Briefly, common law marriage allows individuals to become married, without a formal marriage ceremony, if they cohabitate, have the present intention to be married, hold themselves out as married, and have a general reputation in the community for being married. If Colorado applies the Supreme Court holding retroactively, there is an argument to be made that same sex couples that cohabitated, held themselves out as married, and had a general reputation in the community for being married, could be considered married retroactive to the date they first held themselves out as married. The question becomes whether the couple could have had a present intent to be married if marriage was not legal in Colorado at that time. On a somewhat related issue, a Colorado court has previously found that, if there was an event preventing the common law marriage (in that case, Wife was legally married to another man) the retrospective removal of such barrier (Wife’s divorce to a retroactive date) cannot result in a common law marriage as the parties still did not have the intent to be married at that time. However, a Colorado probate judge, in May 2016, found a valid same sex common law marriage- showing that it could be possible to find common law marriage even when there was a legal barrier to such at the time. This is an area and question that will likely continue to develop as more cases arise and are decided by the court(s). In the meantime, if there is any question, it is advised to execute a marriage license instead of relying on the fact specific and questionable common law marriage argument to establish a valid marriage.

Contact Plog & Stein or Ms. Bryant to discuss your rights and options related to your Colorado family law case.

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