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Same-Sex Marriage and Divorce in Colorado

Same-sex marriage, also known as gay marriage or marriage equality, is a marriage between two people of the same sex. Same-sex marriage is legal in 36 states and has been recognized in Colorado since October 7, 2014. The laws are still changing and catching up with public opinion on the subject.

Later this month, The U.S. Supreme Court will decide whether a state can refuse to license same-sex marriages and whether it may refuse to recognize same-sex marriages from other jurisdictions.

Common Law and Same-Sex Marriage

Since the laws are still so new, there isn’t a lot of precedence concerning whether there can be a same sex common law marriage. As the law settles in and gains more legal ground, a common law marriage should affect a same-sex marriage the same way it affects any other marriage. (More information on common law marriages here.)

With Legal Marriage Comes Divorce

Not every marriage is forever. In cases of same-sex marriage, the divorce laws should work the same way as they do for any other marriage; however, some unique issues may arise. If one of the spouses has a child and the other spouse legally adopts the child, the custody laws should work the same way as they do with a traditional marriage.

However, in the case of two women, if one spouse carries the child and the other spouse is treated like a parent but does not legally adopt the child, the law is less clear. It is up to a court to decide if the mother who carried the child has more right to custody than her wife if the child wasn’t legally adopted by both parties after the child’s birth. The Courts have started recognizing that the “other spouse” is the child’s “psychological parent”.

In cases of two married men where one of them is the biological donor, but they legally adopt the child after the child’s birth, the laws should work the same way as a traditional marriage even though the child shares more DNA with one parent. As we know, sharing DNA and good parenting doesn't always go hand in hand.

The Changing Tide

Laws regarding same-sex marriage are still relatively new. Remember, same-sex marriage was not performed in anywhere in the United States until 2004. It has since been legalized in different jurisdictions through many different means. It’s a possibility that the Supreme Court could change the trend in the lower courts in a few weeks.

Do you have questions about same-sex marriage in Colorado? We’d love to set up a free consultation and answer questions. Give us a call at (720) 999-9506.