January 2021 | 2021 CO 1 (2021)

In re Marriage of Hogsett and Neale (Colorado 2021)

A common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct that supports this agreement. The court must consider all relevant factors to determine if the parties had an agreement. The same-sex parties in this case were in a relationship from November 2011 to November 2014. They never married even after that became an option in October 2014. The parties separated and filed a petition for dissolution of marriage. They mediated their issues and dismissed the petition without the need for a determination as to their marital status. Later, Hogsett sought retirement assets and maintenance. Neale objected, arguing the parties were not married. Hogsett filed a second petition for dissolution stating that the parties were married at common law. The district court had to determine the parties’ marital status. Evidence in favor of a marriage included the purchase of a home and many joint assets. Evidence to the contrary included that the parties didn’t attempt to marry and that Neale testified she had no intention of marrying. Applying the test in place, the district court found that Hogsett failed to meet her burden to establish a common law marriage and dismissed the petition. The Court of Appeals affirmed. The Supreme Court affirmed and announced an updated test for a common law marriage that more accurately reflects current societal norms. The current test used gendered terms and contained outdated factors such as giving weight to the parties use of the same last name. The new test is based on the parties mutual agreement to enter into a marital relationship. A wide variety of factors should be considered. The Court applied the new test to uphold the lower courts’ determinations that these parties did not mutually agree that they were married.

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