2021 CO 1
Colo.2021Background
- Edi Hogsett and Marcia Neale were same-sex partners who lived together from Nov. 2001 to Nov. 2014; they never obtained a marriage license (same-sex marriage not recognized in Colorado until late 2014).
- In Jan. 2015 they filed a pro se joint petition for dissolution and mediated a separation agreement that treated them as having entered a common-law marriage in Dec. 2002; they then dismissed that petition.
- Hogsett later sued to enforce maintenance and asset divisions in the separation agreement; Neale moved to dismiss, asserting no common-law marriage existed.
- Trial evidence included a disputed ring/ceremony, joint home and accounts, some beneficiary designations by Hogsett but not by Neale, private correspondence, and the parties’ joint dismissal of the earlier petition; the district court credited Neale’s testimony that she did not believe in or intend marriage.
- The court of appeals affirmed; the Colorado Supreme Court granted certiorari to revisit Lucero’s common-law marriage test for modern and same-sex contexts, refined the test, applied it here, and affirmed no common-law marriage.
Issues
| Issue | Plaintiff's Argument (Hogsett) | Defendant's Argument (Neale) | Held |
|---|---|---|---|
| Proper test for proving common-law marriage (esp. for same-sex couples) | Lucero factors (mutual consent + open assumption) remain controlling and show marriage here | Lucero’s gendered and traditional indicia are outdated and ill-suited to same-sex and modern relationships; test must account for context | Refined Lucero: common-law marriage requires mutual agreement to enter the legal/social institution of marriage plus conduct manifesting that agreement; Lucero’s gendered language discarded; factors remain relevant but contextualized |
| Whether the parties’ conduct (cohabitation, joint property/accounts, ring exchange, separation agreement) proves a common-law marriage | The parties’ joint home, finances, ring/ceremony, and separation agreement demonstrate mutual intent and manifestation of marriage | Although some indicia exist, Neale never consented to be married; many Lucero indicia are equivocal or inapplicable here | No common-law marriage: totality of evidence and credibility finding that Neale did not intend to be married is dispositive |
| Reliability of Lucero’s traditional indicia (public reputation, name change, joint taxes) post‑Obergefell and today | Such indicia can still support a finding of marriage | Many indicia are underinclusive/overinclusive today and often unavailable to same-sex couples historically; must be weighed in context | Lucero factors remain admissible but their inferences vary by circumstance; public holding and formal markers are not required and may be unavailable for historical same-sex couples |
| Effect of the parties’ initial joint dissolution petition and separation agreement | The joint petition and separation agreement confirm the parties treated themselves as married and thus establish marriage/estoppel | The petition/settlement and dismissal are inconclusive; Neale signed under bad advice and they promptly dismissed the action | Petition/separation agreement are not conclusive; trial court permissibly credited Neale’s explanation and dismissal undermines a conclusive inference of marriage |
Key Cases Cited
- People v. Lucero, 747 P.2d 660 (Colo. 1987) (original Colorado test for common-law marriage)
- Obergefell v. Hodges, 576 U.S. 644 (2015) (same-sex couples have a fundamental right to marry; exclusion invalid)
- United States v. Windsor, 570 U.S. 744 (2013) (federal recognition of marriage’s legal and expressive significance)
- Lawrence v. Texas, 539 U.S. 558 (2003) (decriminalization of same-sex intimacy and related constitutional context)
- Salzman v. Bachrach, 996 P.2d 1263 (Colo. 2000) (cohabitation alone does not create marital rights)
- Stone v. Thompson, 833 S.E.2d 266 (S.C. 2019) (discussion of abolishing common-law marriage and modern erosion of its justifications)