Domestic Partnership Basics in Colorado Explained
The Colorado statute that governs domestic partnerships (C.R.S. 14-15-101, et seq.) provides a legal basis for partners of the same biological sex to register with the Colorado Secretary of State and confer certain rights upon themselves as listed under the statute. According to the statute, the following individuals may enter into a domestic partnership agreement: (1) two individuals of the same biological sex; (2) who are at least 18 years old and competent to contract; (3) who are each other’s sole domestic partner and intend to remain so; (4) who have filed a declaration of domestic partnership with the state, and (5) who do not have another domestic partner. According to the statute: (1) The declaration shall be signed by both parties; (2) The declaration shall be accompanied by an affidavit signed under penalty of perjury by each party that he or she has: (a) Resided or filed an application to reside in Colorado for at least 30 days immediately preceding the signing of the document; or (b) Consented to jurisdiction in Colorado to resolve all issues arising from or relating to the relationship if either party resides outside Colorado or has not resided in Colorado for at least 30 days immediately preceding the signing of the document. (3) The declaration shall be accompanied by a written, notarized waiver of any rights either party may have to employee benefits offered by the other party’s employer until such benefits’ rights are placed on the domestic partner. The default rule is that xxx vi. (4) A declaration is void sixty (60) day from the date the Secretary of State files the document. If a relationship qualifies as a domestic partnership, the domestic partners (as defined by statute) will be entitled to the same rights and benefits that married individuals are entitled to, including: (1) The right to sue for negligence, wrongful death, or infliction of emotional distress as it relates to their partner, and the right to sue for wrongful death, bodily injury, and loss of consortium because of the death of the partner; (2) The obligation to pay child support and contribute to a child’s education; and (3) The right to make health-related decisions for their partner, or to direct the disposition of a deceased partner’s remains . Other rights include: (1) The right to equal benefits under a pension and insurance plan; and (2) The right of intestacy succession in the event one domestic relationship partner should die without a will Miller v. Dist. Court, 32 P.3d 666, 669 (Colo. 2001). Where a domestic partnership can become truncated (dissolved) due to litigation, there are also remedies that are available to both parties, including: (1) the equitable distribution of property; (2) a judicial directive that the titleholder convey specific property to the non-titleholder, and; (3) an order for court-ordered support. The rights to equitable distribution, conveyance of property, and spousal[-]like support recognized by Colorado law in dissolution actions . . . are equally available to persons who have established a domestic partnership. Harman v. Triolo, 426 P.2d 119 (Colo. App. 1947). However, there are limitations to entering into a domestic partnership. For example, a domestic partnership must be registered in order to enjoy the rights enumerated above, and the individual’s registration must not have lapsed, been revoked, or otherwise dissolved. Colo. Rev. Stat. § 14-15-112. Further, if an individual is in another domestic partnership, the first partnership would need to dissolve before forming a new domestic partnership is valid in Colorado. Id. Additionally, only individuals of the same sex may enter into a domestic partnership—the definition of "same sex" is devoid of further specification in the statute, and as Colorado courts have not yet interpreted the statute, this is an area where clarity may evolve. Finally, there is still considerable variance in how the courts will treat the legal status of a domestic partnership in the context of Family Law issues. For example, Colorado courts may not recognize a domestic partnership from another state, in which case additional issues may arise when determining spousal rights and obligations in a dissolution of domestic partnership proceeding.
Common Law Marriage Explained in Colorado
Common Law Marriage Essentials in Colorado
Definition and Additional Information: A common law marriage is a couple’s informal recognition of a marital relationship. The couple often finds that they do not require the benefits and obligations of a formal marriage and as such, often live together for an extended time before considering formalizing their relationship. Despite the informal nature of the relationship, a common law marriage is the equivalent of a formal marriage with all of the rights and obligations that entail, including the ability to file joint federal and state income taxes as a married couple, inherit from each other in the event of death, as well as some restrictions on divorce, regardless of whether the couple has registered as domestic partners.
Requirements: In Colorado, to meet the requirements of common law marriage, the couple must agree to be married, must live together, and hold themselves out to others as a married couple. In 2016, Colorado passed a new statute that provides that the holding out or cohabitation elements to forming a common law marriage must occur concurrently. In other words, the parties must be holding themselves out as married individuals while living together. For example, Elizabeth and Bill are both single and decide to live together as a married couple in Colorado. If Bill starts calling Elizabeth his wife and they start introducing each other as husband and wife and perhaps even start filing taxes jointly, they are both holding themselves out to others as a married couple. If Bill and Elizabeth were to separate or terminate their cohabitation with no intent to marry thereafter, they cannot seek support from each other in court, even if they have lived together for ten years. They were essentially roommates because they never intended to be married, even if they held themselves out as spouses. Common law marriage is harder to prove the longer the parties live together and eventually separate with no intent to marry. Essentially, even though they are holding themselves out as spouses, do they really intend to be spouses? On the other hand, if Bill and Elizabeth after living together for two years file joint tax returns, open joint bank accounts where their paychecks are deposited, and even agree to one party taking the other’s last name, the burden is on the other party to argue that the elements required for a common law marriage do not exist. The burden of proof and disbursement is much different in a divorce from a common law marriage than those who merely plan to enter into a formal marriage ceremony.
Legal Rights and Benefits in Comparison
Domestic partnerships and common law marriages in Colorado are legally distinct and come with different legal rights and benefits. For example, a domestic partnership does not provide an individual with a right to make healthcare decisions for the other individual under the Colorado Statutory Authority Concerning Medical Treatment Decisions or under the Colorado Durable Power of Attorney Act. Additionally, in the event an individual in a domestic partnership dies, such individual must have left a will or other estate planning documents in order to ensure that his/her property passes according to his/her wishes. A common law marriage in Colorado, however, grants rights to an individual to make healthcare decisions on behalf of the other individual under the Colorado Statutory Authority Concerning Medical Treatment Decisions and would also allow the deceased individual to pass his or her property to the surviving spouse even if the individual did not have a will.
A domestic partner does not necessarily have a right to inherit from an individuals property if he/she passes away with no will or estate plans. A common law spouse does have the same rights as a married person with respect to his or her spouse’s property, i.e. such a spouse will be presumed to inherit from his/her spouse if he or she has died intestate.
Moreover, if a domestic partnership ends without the filing of a domestic partnership dissolution document, the law is unclear with whom the burden lies to prove that a partnership existed and what the terms of such partnership were. Conversely, if a common law marriage ends, the parties’ can file for a divorce in the same way as if they had been married through a civil ceremony.
There are many more issues to consider when comparing these two types of legal partnerships, such as what rights either may have to the other’s employees’ benefits or what recourse either may have if the other violates the terms of their partnership agreement.
Dissolution and Legal Proceedings
While there is no ‘legal’ action required for a Domestic Partnership to come into being in Colorado, the legal dissolution process ("domestic partnership action") is similar to a divorce. If the domestic partnership was entered into in a foreign state, Colorado will honor and accept the dissolution under the Colorado Uniform Dissolution of Marriage Act. The court will apply the laws of the state where the partnership was entered into , except for issues of child support, allocation of parental responsibilities, and parental rights as addressed in the UCCJEA.
Common law marriage in Colorado may be dissolved through a divorce or judicial annulment. Contrary to domestic partnerships, all common law marriages must be judicially dissolved. The dissolution process is equivalent to a divorce.
Determining the Best Choice for Your Situation
The decision to enter into a domestic partnership or a common law marriage can be complex. There are various factors to consider and individuals should be fully informed before making this decision. There are circumstances that may make one option better than the other for a couple. For example, you may decide that you simply do not want the legal responsibilities that come with a common law marriage. However, there are many factors to consider when entering into a domestic partnership as well. For example, given the division of property during a domestic partnership and when a partner dies, you may find that a domestic partnership is not in the best interest of your family. It may create more issues than it solves. If your focus is on protecting your assets, a common law marriage may be the better option.
Ultimately, the choice of whether to enter into a domestic partnership or a common law marriage in Colorado will depend on the individual circumstances of each couple. Make sure to investigate both options fully before choosing the option for you.
Recent Changes in Colorado Law
On Feb. 18, 2016, in Rakestraw v. Rakestraw, Division 1 of the Colorado Court of Appeals wrestled with the issue of whether common law marriage was illegal under Colorado law in light of the passage of the Civil Union Act (CUA) in 2013. Specifically, the Court of Appeals heard and affirmed the ruling of the Weld County District Court where it found that: The Court of Appeals held that the question of the validity of enforced interim rules promulgated by the Colorado Department of Personnel & Administration of the State of Colorado Civil Rights Division (DPA) addressing sex discrimination and civil unions that went into effect on January 1, 2014 remained a "legal question the determination of which may affect the rights of others and requires an immediate determination" and as such, would be resolved after the Legislature had an opportunity to enact a procedural framework . The Court of Appeals went on to acknowledge the fact that the Colorado Supreme Court had not yet addressed the issue of whether the CUA displaced common law marriage in light of the historical context of the CUA. As the first case to really grapple with the issue of the interplay between the CUA and common law marriage, the Rakestraws’ case has received significant attention. Bloggers and practitioners alike have weighed in on the ruling, which may or may not provide a clear answer to both the validity of common law marriage and the reserved nature of Colorado’s common law marriage law.