Please note: This article updates and modifies the information previously provided by the Wevorce Team on June 4, 2013. Local and state laws change constantly. This information is for informational purposes only. We do our best to keep this up-to-date, but please contact us to discuss your unique situation.
Same Sex Marriage in Colorado
On October 7, 2014, Colorado Attorney General John Suthers instructed the state’s 64 county clerks to begin issuing marriage licenses to same-sex couples. Colorado’s ban on same-sex marriage was called into question after the U.S. 10th circuit Court of Appeals overturned bans on gay marriage in Oklahoma and Utah. On October 6, 2014, the U.S. Supreme Court declined to hear any appeals concerning those decisions. So, the gay marriage ban in Colorado, which is under the jurisdiction of the 10th Circuit, was effectively “disbanded” by the state.
Prior to this change, the state of Colorado only recognized and issued licenses for civil unions to same-sex couples and only granted civil union dissolutions. Even if couples were legally married in another date, if they filed for a divorce in Colorado, it was only recognized as dissolution of a civil union. This became a problem when the Internal Revenue Service refused to apply special tax exemptions reserved for divorcing couples to the transfer of assets as a result of civil union dissolution. “Divorcing” in Colorado became a potentially huge tax liability for same-sex couples.
Getting Married
With the recognition of same-sex marriage, the tax problem above is instantly resolved in Colorado. However, there are a few safeguards same-sex couples should consider before getting comfortable that they are on equal footing in Colorado:
- Get married. If you got a civil union under the existing Colorado laws, it is still a civil union. In order to benefit from being in a “marriage” under Colorado laws (including being able to get a Colorado divorce), you must actually apply for and file a marriage license. If you want a civil union instead of a marriage, you can still get one.
- Get married again. If you were one of the lucky couples who got a marriage license from the clerks of court in Boulder, Denver, or Pueblo counties after the 10th Circuit’s rejection of Utah’s gay marriage ban in June 2014 but before the AG’s instructions in October 2014, the AG has advised that the prudent thing to do would be to get another (definitely valid) license. Otherwise, there is no guarantee that, if it is ever questioned, your June-October 2014 marriage license would be legally valid.
- Get your civil union dissolved if you want to re-marry. There is still question around whether county clerks will issue marriage licenses to people who already have a valid civil union. The courts have not answered this question yet, but Denver county clerks are requiring it. So, if you want to be sure, get a civil union dissolution before you get married to someone else. (There is no requirement to dissolve your civil union if you are marrying your civil partner.)
Getting Divorced
As previously mentioned, Colorado same-sex couples considering divorce might want to also consider getting a valid marriage first.
Another wrinkle that same-sex couples divorcing in Colorado may encounter is the question of the “duration of the marriage.” In Colorado, much of the court inquiry and analysis in determining an “equitable” result hinges on or takes into account the duration of the marriage. Some same-sex couples may have been committed for many years, but in Colorado, their marriages may only be deemed to have begun after October 7, 2014. It remains to be seen whether courts will consider time in which couples were validly joined in a civil union, in marriage by another state, or in mere solidarity with one another in determining the duration of the marriage.
Mediation can help solve the problems that a patchwork of laws over the years have created in the courts. In a mediated divorce, the couple can look past the limits of Colorado law and precedent to determine on their own when their marriage started and how to amicably and equitably reorganize their belongings, their parenting responsibilities, and their lives in a way that makes sense to them. And, now, Colorado allows same-sex couples to engage in the same divorce process as opposite-sex couples (provided they procure a valid marriage prior to divorce).
Contact any of our Colorado associates for more information on the details of your potential divorce mediation process.
