In re Marriage of Hogsett and Neale (Colorado 2021)

Decided January 11, 2021
Colorado is one of a small number of states that recognizes “common law marriages” which do not require any kind of registration of the marriage for a valid marriage to be found. In the immigration context, this can cause problems for the unsuspecting.
For example, imagine a scenario where a couple goes for an adjustment of status interview with USCIS and during the interview the officer asks about the husband’s children from a prior relationship. The officer then starts to ask about the mother of those children and how long he lived with her before his current marriage. Even through the husband never consider himself to be previously married, the USCIS officer ultimately determines he was married to the mother of his children (under common law) and therefore his current marriage is void because he never obtained a divorce.  The officer denies the case.
The Hogsett case has made the likelihood of this type of outcome greater given its more flexible language. In Hogsett, the Colorado Supreme Court expanded and refined its longstanding 1987 People v. Lucero criteria to make it arguably easier to find a common law relationship based on the facts of a case.
The Court found that in the absence of evidence of the couple’s express agreement to marry, this agreement can be inferred by conduct and the manifestation of this agreement need not take any particular form.  Furthermore, in light of Obergefell v. Hodges (the US supreme court case guaranteeing the right of same-sex marriages in all states):
we discard Lucero’s gendered language. In addition, we conclude that the conduct manifesting the parties’ agreement to marry need not take the form of “mutual public acknowledgment,” id., or “open marital cohabitation” in every case, id. at 664 (quoting Homer Clark, Law of Domestic Relations 48 (1968)). There may be cases where, particularly for same-sex partners, a couple’s choice not to broadly publicize the nature of their relationship may be explained by reasons other than their lack of mutual agreement to be married. We are satisfied that in such cases, a general requirement to introduce “some objective evidence of the relationship” will sufficiently guard against fraudulent assertions of marriage. Id. (quoting Clark, supra, at 48).
Therefore, it is possible that USCIS will use the language of this case out of context to argue that the requirements of finding a common law marriage have diminished.  However,  in reality, if one carefully reads the case – it only modifies Lucero to bring it in line with modern lifestyles and norms, and to reflect that same-sex marriages are now recognized in all states.  An agreement to enter into a marital relationship is still required, and cohabitation will generally be required in most all cases.  As such, a good immigration attorney should be able to make strong arguments against the finding of a common law marital relationship based on case specific facts.