Many LGBT Americans have wondered whether their same-sex marriages would be invalidated under the Trump administration. Fortunately, marriage equality is not in serious jeopardy. Marriage equality became law everywhere in the United States in 2015 when the Supreme Court decided the case of Obergefell v. Hodges, which overturned every remaining gay marriage ban in the county. The ruling in Obergefell is likely to stand the test of time. The doctrine of stare decisis—which means that courts generally will respect and follow their own prior rulings—is strong, and the Supreme Court rarely overturns an important constitutional ruling so soon after issuing it. Even the appointment of a conservative justice like Neil Gorsuch to the Supreme Court would not jeopardize the 2015 ruling on marriage equality. He would simply replace the late conservative Justice Scalia, leaving the balance of power undisturbed. It would be another story however if one of the more progressive justices were to pass away and be replaced by a Trump appointee. But even then, the great majority of Americans still strongly support the freedom of same-sex couples to marry. Between that, and the doctrine of stare decisis, undoing marriage equality would be extremely difficult.
Trump or no Trump, marriage equality continues to evolve. The newest development in that area of the law is determining when a same-sex marriage may have begun. This question must be answered for divorces, inheritance, taxes and social security purposes. Is it possible to have been married before the Supreme Court ruling in Obergefell in 2015? If you were legally married in any state prior to 2015, the answer is yes. If you never formally married anywhere, the answer is…perhaps.
Colorado is a common law marriage state. Essentially, in a common law marriage, two parties create a valid marital relationship without the benefit of a legal marriage ceremony performed according to the statutory requirements. The foundation for a common law marriage is mutual consent or agreement of the parties to be husband and wife, and thereafter a mutual and open assumption of a marital relationship. But is it possible for a same-sex couple to have been married prior to the ruling in the 2015 Obergefell case? Many judges and lawyers say yes. But how do we prove it? Opposite sex couples often rely on factors such as having referred to each other as “husband” and “wife,” having an informal wedding ceremony, or filing joint taxes. Many same-sex couples would not have engaged in these practices. But that does not necessarily mean they were not a committed marriage-like relationship. More appropriate factors to rely on in a same-sex case might be financial interdependence, celebrating anniversaries of one meaningful event or another, or listing the other party as a beneficiary or emergency contact.
LGBT family law continues to evolve quickly. At Harrington, Brewster & Clein, we are on the cutting edge of these issues and we are here to help.