Same-sex marriage has been legally recognized in Colorado since October 2014, following the Tenth Circuit Court of Appeals ruling in Kitchen v. Herbert, and later affirmed nationally by the U.S. Supreme Court in Obergefell v. Hodges(2015). With this recognition comes full access to divorce and family law protections, yet for many LGBTQ couples, navigating the legal system remains complex due to overlapping issues like civil unions, parentage, property classification, and evolving interpretations of equitable distribution.
Legal Recognition of Same-Sex Marriages and Civil Unions
Colorado recognizes both same-sex marriages and civil unions. However, divorcing couples must understand that these two unions follow different legal frameworks:
- Same-sex marriage is treated the same as heterosexual marriage under Colorado law. The process for divorce (dissolution of marriage) is identical and governed by Colorado Revised Statutes Title 14.
- Civil unions, available since 2013, provide many of the same legal rights as marriage, including rights related to inheritance, property, and financial support. Dissolution of a civil union follows a similar procedure to divorce but may raise unique legal questions if the union predates the legalization of marriage or if the couple later married.
Filing for Divorce as LGBT Couple in Colorado
To file for divorce in Colorado, at least one spouse must have been domiciled in the state for at least 91 days before filing a Petition for Dissolution of Marriage (C.R.S. § 14-10-106). Jurisdiction is established in the District Court of the county where either spouse resides.
The divorce petition initiates proceedings and may involve issues related to:
- Spousal support (maintenance)
- Property and debt division
- Allocation of parental responsibilities (if children are involved)
In some cases, especially when one partner moved to Colorado after residing in a state that did not recognize the marriage, establishing jurisdiction and legal standing can be more complicated. Consulting a family law attorney is highly recommended in such instances.
Property Division: Marital vs. Separate Assets
Colorado follows the principle of equitable distribution, meaning that marital property is divided fairly but not necessarily equally. Courts consider a wide range of factors under C.R.S. § 14-10-113 when dividing assets and debts.
Marital property generally includes:
- Property acquired during the marriage
- Increases in value of separate property during the marriage
- Contributions to pensions, retirement accounts, or business growth
Separate property typically includes:
- Assets acquired before the marriage or civil union
- Inheritances or gifts to one spouse
- Property designated as separate in a prenuptial agreement
In LGBT divorces, complications often arise when property was acquired before the marriage but after the couple had begun cohabiting or entered into a civil union. In such cases, courts may assess intent, commingling of finances, and documentation to determine classification.
Parental Rights and Custody
Colorado refers to child custody as allocation of parental responsibilities (APR), which includes parenting time and decision-making authority. The courts prioritize the best interests of the child (C.R.S. § 14-10-124) regardless of the parents’ gender or sexual orientation.
However, LGBTQ couples may face unique hurdles in custody cases, especially if:
- One parent is a biological parent, and the other is not
- There was no formal adoption
- The child was born before the legal recognition of the relationship
In such scenarios, non-biological parents may need to petition for parental rights, especially if they were not named on the birth certificate or did not complete a second-parent adoption. Courts consider the emotional bond between the child and the non-biological parent, the intent to co-parent, and past caregiving roles.
Civil Unions and Retroactive Legal Complexity
Many same-sex couples entered civil unions before marriage was legalized. If those couples never formally dissolved their civil union and later married, they may be required to dissolve both the union and the marriage during the divorce process.
Some challenges may include:
- Determining the legal start date of the relationship for property division
- Conflicts between state-recognized unions and federal tax/benefit rules
- Gaps in legal recognition for out-of-state civil unions
Colorado courts generally treat the start of cohabitation or the date of union registration as relevant for equitable division analysis, especially in long-term partnerships.
Spousal Support (Maintenance)
Spousal support in Colorado is awarded based on the requesting party’s financial need and the other party’s ability to pay. Factors include the length of the marriage, standard of living, earning capacity, age, and health.
Given that some LGBTQ couples cohabited for years before marriage was legally available, judges may consider this history informally when assessing fairness, though statutory calculations typically rely on the official date of marriage.
Support can be temporary (during proceedings) or long-term (post-decree). If both partners earn comparable incomes and have similar assets, spousal maintenance may not be awarded.
Common Law Marriage Recognition
Colorado is one of the few states that continues to recognize common law marriage, including for same-sex couples. A common law marriage exists when two individuals:
- Cohabit
- Mutually consent to be married
- Hold themselves out to others as spouses
In the landmark case In re Marriage of LaFleur and Pyfer (2021), the Colorado Supreme Court clarified that same-sex couples could be considered married under common law, even before marriage equality was formally established.
Dissolution of a common law marriage follows the same procedure as any legal marriage, including property division and support.
Legal Counsel and Future Planning
LGBTQ individuals going through divorce are encouraged to seek guidance from attorneys familiar with:
- Civil unions and marriage laws
- LGBT family dynamics and child custody matters
- Complex property division
- Retirement and benefit allocations
Additionally, post-divorce steps such as updating wills, power of attorney documents, and healthcare proxies are critical, especially for individuals who previously relied on legal agreements outside the bounds of traditional marriage.