Common Law Marriage and a "Refined" Look at People v. Lucero, 0621 COBJ, Vol. 50, No. 6 Pg. 50

PositionVol. 50, 6 [Page 50]

50 Colo.Law. 50

Common Law Marriage and a "Refined" Look at People v. Lucero

No. Vol. 50, No. 6 [Page 50]

Colorado Lawyer

June, 2021


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This article discusses factors courts consider when determining whether a common law marriage exists. It focuses on three recent Colorado Supreme Court decisions.

This article discusses the Colorado Supreme Court's three recent decisions regarding common law marriage, including two that apply specifically to same sex common law marriage.1 Each case addresses the application of the historic decision People v. Lucero[2] and the "refinement"3 of its standards to address the shifting demographic realities of cohabitation and marriage.

The Lucero Framework

For 33 years Lucero provided the framework for determining whether a common law marriage exists and, if so, when it arose. In Lucero, a court was called on to determine the marital status of a criminal defendant and the woman alleged to be his wife to assess whether she could testify against him. But Lucero's identification of factors to consider in a threshold determination of marriage have spread beyond that fact pattern and become critical to the administration of decedents' estates and to actions for dissolution of marriage. In probate matters, individuals often claim to have been married to a decedent at common law and, accordingly, entitled to the statutory benefits provided to a surviving spouse in the absence of any contrary agreement.4 In family law matters, a claimant who can prove to a court the existence of a common law marriage may, in the dissolution of that marriage, become entitled to ongoing support and a portion of the couple's marital property.5

Under Lucero, common law marriage exists only where the parties intended and agreed to have a lawful marriage as evidenced by their open assumption of the marriage and their repute in the community as married. In construing Lucero, the Colorado Supreme Court's most recent rulings expand the factors to be considered in family law and probate matters associated with contested common law marriages. In doing so, they address a larger reckoning about due process, equal protection, and the future of common law marriage itself.

The Demographics Background

Lucero and its progeny must now be applied in light of the growing numbers of unmarried adults residing together and the recognition that same sex couples may legally marry.6 The number of unmarried cohabitants living together in the United States is greater than ever; from 1996 to 2017, the number nearly tripled, from 6 million to 17 million.7Cohabitation without marriage is sometimes seen as an alternative to marriage for members of economically marginalized groups, but cohabiting adults today are older, more racially diverse, better educated, and financially better off than before.8 In 1996, only 2% of those cohabitants were 65 or older; by 2017, the number rose to 6%, and more of those partners had been previously married.9 By 2017, 28% of unmarried cohabitants had a bachelor's degree or higher educational level compared to 16% in 1996.10

Meanwhile, marriage rates have fallen in the United States. The National Center for Health Statistics reports that marriage began a long decline starting in the mid-1980s and hit an all-time low of 6.5 marriages per 1,000 persons in 2018.[n] Whether unmarried cohabitation has increased because it is more acceptable or because it offers potential cost savings—shared expenses while avoiding liability for a spouse's medical expenses, protecting assets such as pensions, continuing spousal support from a previous marriage, or preserving wealth for children of a previous relationship—the demographic landscape is markedly different from the one the Lucero Court encountered.

In re Marriage of Hogsett and Neale

In re Marriage of Hogsett and Neale, announced on January 11, 2021, was the lead case that considered Lucero. Hogsett and Neale were same sex partners in a 13-year relationship that began in 2001. When they broke up in 2014, they jointly petitioned the district court for a dissolution of their marriage, seeking approval of their property division agreement and Neale's agreement to pay maintenance to Hogsett.

After the initial status conference, when the parties learned that the court would need to find that a marriage existed before it could dissolve it, the parties agreed to dismiss the petition. Hogsett then attempted to enforce the agreement regarding the property division and maintenance, but Neale maintained that no marriage had existed. Hogsett moved to reopen the dissolution case. When the court denied that motion, Hogsett moved to dissolve a civil union, but then withdrew the petition and filed a second petition to dissolve what she alleged was the couple's common law marriage. Neale moved to dismiss the second petition, arguing not only that the relationship did not meet the Lucero test but also that she and Hogsett, as a same sex couple, could not have legally married during their relationship because Obergefell v. Hodges,12 which held that states cannot deprive same sex couples of the fundamental right to marry, had not yet been decided. Accordingly, she argued, the court could not determine that she and Hogsett had been married retroactively as of the date that same sex marriage became legally recognized.

In its hearing on the second petition, the trial court heard conflicting testimony about the significance of the parties' exchange of rings. According to Hogsett, it occurred during a "very intimate close marriage ceremony"13 at a bar, but Neale described it as an exchange of commitment rings without the presence of family members or friends. In addition to that testimony, the trial court considered that the parties referred to each other as "partner"; they had joint banking and credit card accounts; they worked together with a financial advisor; they purchased a custom home together; Hogsett listed Neale as a primary beneficiary and domestic partner on her 401(k) plan, and as next of kin and "life partner" on a medical record; Hogsett certified on a health insurance form that she was "not married"; Neale testified that she did not believe in marriage and did not believe that she and Hogsett were married; and Neale mistakenly believed that the parties needed to have the approval of a court to divide their property.[14]

The district court acknowledged that it had the authority to recognize a valid same sex common law marriage that arose before such marriages were legally recognized in Colorado. Nevertheless, it ruled that no valid marriage existed.

The Court of Appeals found that the trial court had properly applied the Lucero factors to conclude that the parties had no common law marriage and noted that a court may find a same sex common law marriage existed under Lucero based on the parties' conduct before Obergefell was decided. It agreed that many of the evidentiary factors established in Lucero to determine whether a common law marriage existed were not available to the parties because of the unconstitutional laws forbidding same sex marriage in effect during their relationship, and the trial court properly had given less weight to those indicia during the parties' prie-Obergefell relationship.15

Lucero Refined: The New Test

In affirming the Court of Appeals decision, the Supreme Court in Hogsett acknowledged that Lucero's usefulness in distinguishing between marital and non marital unions has eroded over time, and its factors may be overinclusive of couples who do not intend to be married or under inclusive of genuine marriages outside of a "traditional model."16

Some of Lucero's evidentiary factors may still be relevant, such as the parties' cohabitation, reputation in the community as spouses, joint banking and credit accounts, purchase and joint ownership of property, filing of joint tax returns, and use of one spouse's surname by the other or by children raised by the parties. But the Court added the following factors as germane: evidence of shared financial responsibility, such as leases in both partners' names, joint bills, or other payment records; joint estate planning, including wills, powers of attorney, and beneficiary and emergency contact designations; symbols of commitment, such as ceremonies, anniversaries, cards, gifts, and the couple's references to or labels for one another; and the parties' "sincerely held beliefs regarding the institution of marriage."[17]

Hogsett also noted the importance of a couple's intent, stating that common law marriage may be "established by the mutual intent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement."18 The key question is "whether the parties mutually 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."19 There must be some manifestation of that consent and a flexible inquiry into the totality of the circumstances...

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