OPINION: Can you retroactively claim same-sex common law marriages?

by Michael Stutman | Stutman, Stutman, and Lichtenstein LLP,
Thursday, 23 July 2020 14:32 GMT

ARCHIVE PHOTO: Supporters of gay marriage rally in front of the Supreme Court in Washington June 25, 2015. REUTERS/Joshua Roberts

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

Two U.S. court cases are deciding if gay couples who broke up before it was legal to marry are bound by spousal support rules

Michael Stutman is the founding partner of Stutman, Stutman, and Lichtentstein LLP and former president of the American Academy of Matrimonial Lawyers

Can same-sex couples in the United States claim the benefits of marriage if they broke up before same-sex marriage became legal nationally in 2015?

That question is currently before two courts – one in Texas and one in Colorado.

Gustavo Hinojosa, a gay resident of Dallas, was in a committed relationship from 2000 to 2015 with Steve Paul LaFredo. But the relationship disintegrated only one month shy of the Supreme Court ruling in 2015 that the federal “Defense of Marriage Act” was unconstitutional.

Lambda Legal, an LGBT+ legal advocacy group, is arguing on Hinojosa’s behalf that he can claim to have been in a common law marriage. It argues that the Supreme Court can be applied retroactively, so that he can receive alimony — support that is only available to a spouse or former spouse.

In 2003, Dean LaFleur and Tim Pyfe had a commitment ceremony in Colorado.

LaFleur says he only agreed to the ceremony because, in his opinion, it was not legally binding. Pyfer, on the other hand, claims he believed that the ceremony was a public statement of commitment.

The Colorado Gazette reported that when Pyfer went to sue LaFleur for alimony following their break up, LaFleur claimed the wedding bells that were used for decorations in their commitment ceremony were as fake as the marriage.

LaFleur’s claim didn’t work and a common law marriage was retroactively recognized by a district court in Colorado, with the judge asserting that a legal separation is necessary. The Colorado Supreme Court will now rule on the case.

So why is it harder for a gay couple to prove a common law marriage than it is for a straight couple?

Generally there are three conditions that must come together at a single point in time.

The first is simple: the two parties must cohabit. There is usually no minimum amount of time.

Second, is that the two parties must consider the relationship to be on the same plane as a married relationship.

Third, the two parties must “hold themselves to the public” as spouses.

But being public as a gay couple has not always been the easiest thing to do.

Older same-sex couples often used the terms “partner”, “soul mate”, “roommate” or even “friend”, rather than “husband”, “wife” or spouse”.

The Netflix documentary ‘Secret Love’, featuring the late women’s baseball star Terry Donahue and her partner Pat Henschall, showed such a situation. No one in Terry’s family knew that “Aunt Pat” was in a committed relationship with Terry. They simply assumed Pat and Terry were two close friends who lived with one another.

Sometimes common law marriages are “proven” by written evidence showing the couple considered themselves to be married.

For example, opposite-sex couples may have signed in as “husband and wife” at a motel in a state that accepted common law marriage. It is rare, however, that two individuals in a same-sex couple would sign a visitors book as “Mrs and Mrs Smith”.

These examples make it clear that in practice common law marriage is not as readily available to same sex couples – for now, anyway.

There also needs to be a cultural change requiring more honesty in relationships – both straight and same-sex. All unmarried individuals in relationships should be clear with their partner about what level of commitment they believe they have.

Individuals who were previously in same-sex committed relationships are finally gaining the legal ability to seek alimony and support from ex-partners, such as is the case in Colorado. But this is happening for opposite sex couples across the United States as well.

It’s going to be exciting to see how the case in Texas also pans out and what it and the Colorado ruling mean for the institution of marriage.

Nonetheless, we’re beginning to see that there is always a possibility that your ex-partner could try to have your relationship retroactively labeled as a marriage.

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