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The Supreme Court of Colorado refines the test from State v. Lucero and holds that 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 manifesting that mutual agreement. The key inquiry 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 and obligation. In assessing whether a common law marriage has been established, courts should accord weight to evidence reflecting a couple's express agreement to marry. When examining the parties' conduct, the factors identified in Lucero can still be relevant to the inquiry but 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.
Edi L. Hogsett and Marcia E. Neale were in a thirteen-year relationship from November 2001 to November 2014. The two women never formally married (and could not have done so in Colorado until October 2014). Nevertheless, in January 2015, they jointly filed a pro se petition for dissolution of marriage in Arapahoe County District Court. The parties mediated a separation agreement stating that they had entered a common law marriage on December 1, 2002, and that their marriage was irretrievably broken. The separation agreement included a division of the parties' purported marital property, including their home, furniture and household goods, bank accounts, stock purchase plans, retirement plans, vehicles, pets, and other miscellaneous assets, and provided for the division of their debts and obligations. It also required Neale to pay Hogsett $1,000 in monthly "spousal maintenance" for about seven years. At the initial status conference, the court explained that it would have to find that a marriage existed before it could address the petition for dissolution. The parties reported that they did not have a marriage or civil union license and stipulated to dismissal of the petition, explaining that, through mediation, they had "fully settled all issues they had wanted to address in a dissolution case," and that they "would be able to implement their [agreement] between themselves [without] court involvement." The case was dismissed. Hogsett later sought certain retirement assets and maintenance she believed Neale owed her under their separation agreement. Neale communicated to Hogsett her position that no marriage existed between them. Hogsett then filed a second petition for dissolution of marriage that is the subject of this case. Neale moved to dismiss, asserting, as relevant here, that the parties were never married under common law. In its detailed oral ruling, the district court first acknowledged what the Court confirmed today in LaFleur: that it could recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples' fundamental right to marry. In the end, the court found "credible evidence . . . that [Hogsett] believed that she was married to [Neale]." But it also found "credible evidence that [Neale] did not believe that she was married" to Hogsett. It noted that Neale testified that she "do[esn't] believe in marriage" because she "do[esn't] believe two people can promise each other that they're going to love each other for the rest of their lives." Moreover, Neale "never referred to [Hogsett] as her wife; never told anyone she was married; [and] never listed married or intent to be married on any legal, financial, or medical documents." Accordingly, although it acknowledged the case was "extremely difficult," the court held that Hogsett had not met her burden to establish a common law marriage by a preponderance of the evidence and granted Neale's motion to dismiss. The court of appeals affirmed.
Was Hogsett able to meet her burden to establish the existence of a common law marriage?
Hogsett testified that the parties exchanged custom wedding rings before friends and patrons at a bar, but later "backtracked and agreed" that only bar patrons were present. She was unable to confirm the exact date of the ring exchange. Neale, in contrast, testified that the parties merely exchanged rings "[t]o express commitment to the relationship," that it was "nothing significant," and that there were no family or friends present. As noted in the Court’s analysis of jurisprudence, the traditions and symbols that mark marital commitments are not uniform; it is possible that an impromptu, intimate exchange of rings in a bar can be a marriage ceremony if the parties mutually intend it to be. Here, the district court found the evidence of this ceremony only partially helpful; it found there was evidence of a committed relationship but that the parties had different interpretations of the significance of the ring exchange. Because the evidence of an express agreement to marry is inconclusive, we turn to evidence of the parties' conduct to determine if such an agreement may be inferred. Considering the totality of the circumstances and viewing the evidence in context, the record supports the district court's determination that there was no mutual agreement of the parties to enter into a marital relationship. Analyzing each of the circumstances in turn:
1. Hogsett and Neale never celebrated the date of the ring exchange as an anniversary; they did not wear their rings consistently; and they never referred to each other as wife or mentioned marriage in letters and cards they exchanged. True, it is possible that the couple did not celebrate the ring exchange as an anniversary or refer to each other as spouses because they were not and could not be formally married at the time. But they never privately celebrated the ring exchange as a key date in their relationship, and in communications with third parties, including family and long-time friends, only Hogsett ever referred to Neale as her wife or described the relationship as a marriage. Here, there is no evidence that the parties chose to hide the true nature of their relationship for fear of disapproval or discrimination.
2. The parties did cohabitate and bought a custom home together, had joint banking and credit accounts, and went to a financial advisor to manage and preserve their assets as a couple. This evidence tends to demonstrate a committed relationship of mutual support and obligation, but it is not necessarily dispositive proof of a marital relationship, given the modern trends noted above regarding unmarried couples' varying financial arrangements. Hogsett also listed Neale as a primary beneficiary and domestic partner on her 401(k) and as next of kin and life partner on a medical record, indicating an intent to have a legally recognized relationship. Neale, however, did not make any similar designations.
Also, as discussed above, the parties' behavior after the relationship ends may be instructive. Here, Hogsett points to the parties' petition for dissolution of marriage and their mediated separation agreement as evidence that they had agreed to be married. It is true that Neale was the one to suggest "divorce" to Hogsett and that Neale signed the petition and separation agreement without refuting the existence of a marriage. That said, the district court credited Neale's testimony that she "was given bad advice" and thought she was required to file for dissolution in order to separate their finances. Moreover, the parties acknowledged at their initial status conference in that proceeding that they had "no marriage or civil union license" and then jointly and promptly dismissed the action. In short, the filing of the initial petition for dissolution and the parties' separation agreement is not conclusive evidence that the parties intended to enter a common law marriage.
Returning to the core query, it is clear that both parties were in a committed, intimate relationship for thirteen years. Nevertheless, to establish a common law marriage, there must be mutual intent to enter a marital relationship. Although Hogsett testified that she had such intent, the record reflects that Neale did not. Neale testified that she "do[es]n't believe in marriage. [She] do[es]n't believe two people can promise each other that they're going to love each other for the rest of their lives." And importantly, Hogsett confirmed that Neale expressed to her that "she doesn't believe in marriage because she believes that there's . . . a higher power than that." The district court thus made a credibility determination that Neale "never asked to be married, . . . doesn't believe in marriage[, and] doesn't believe that two people can be in . . . love their whole life." In sum, while Hogsett may have intended to be married, there is insufficient evidence to conclude such intent was mutual, despite both parties' clear commitment to each other and other indicia of a marital relationship.