As societal attitudes continue to evolve, same-sex marriage has become legally recognized in many jurisdictions, including Colorado. However, with marriage comes the possibility of divorce, and same-sex couples may face unique legal considerations and challenges when seeking to dissolve their unions. In this article, we’ll explore the legal landscape of same-sex divorce in Colorado, including relevant statutes and case law, as well as the rights and considerations for LGBTQ+ couples navigating this process.

Legal Recognition of Same-Sex Marriage in Colorado

In 2014, Colorado began recognizing same-sex marriages following several court rulings and legislative actions. The legalization of same-sex marriage grants LGBTQ+ couples the same rights and responsibilities as opposite-sex couples, including the right to marry and divorce under state law.

Jurisdictional Requirements for Divorce in Colorado

To file for divorce in Colorado, either spouse must meet the residency requirements outlined in Colorado Revised Statutes (C.R.S.) §14-10-106. Generally, one party must have been a resident of Colorado for at least 91 days prior to filing for divorce. Additionally, same-sex couples who were married in another jurisdiction but reside in Colorado may seek divorce in the state, provided they meet the residency requirements.

Equitable Distribution of Marital Property

Colorado is an equitable distribution state, meaning marital property is divided fairly, though not necessarily equally, upon divorce. Marital property includes assets acquired during the marriage, regardless of whose name is on the title. Same-sex couples should be aware that property acquired before the marriage or through inheritance or gift may be considered separate property and not subject to division.

Spousal Support (Maintenance)

Spousal support, also known as maintenance, may be awarded to one spouse following a divorce to provide financial support and assistance with living expenses. In Colorado, spousal support is determined based on factors such as the duration of the marriage, each spouse’s financial resources and earning capacity, and the standard of living established during the marriage (C.R.S. §14-10-114).

Child Custody and Parenting Time

Same-sex couples who have children together may face unique challenges regarding child custody and parenting time upon divorce. Colorado law encourages shared parenting arrangements that prioritize the best interests of the child (C.R.S. §14-10-124). Courts consider factors such as the child’s relationship with each parent, the child’s adjustment to their home, school, and community, and the ability of each parent to encourage a positive relationship with the other parent.

Legal Recognition of Parental Rights

For same-sex couples who have children through assisted reproductive technology or adoption, establishing legal parental rights is critical. Colorado law presumes that both spouses in a same-sex marriage are legal parents of a child born during the marriage (C.R.S. §19-4-105). However, for couples who are not married or who have children through other means, it may be necessary to establish parental rights through adoption or other legal mechanisms to ensure protection and recognition of parental rights in the event of divorce.

Protections Against Discrimination

LGBTQ+ individuals facing divorce in Colorado are entitled to the same legal protections against discrimination as any other individuals. Discrimination based on sexual orientation or gender identity is prohibited in employment, housing, public accommodations, and other areas under the Colorado Anti-Discrimination Act (C.R.S. §24-34-401 et seq.).

Case Law

The legal landscape surrounding same-sex divorce continues to evolve, with courts addressing various issues related to marital dissolution for LGBTQ+ couples. Two important landmark cases that went before the Colorado Supreme Court in 2021 (In re Marriage of Hogsett & Neale and In re Marriage of LaFleur & Pyfer), concerned same-sex common law marriages prior to the 2015 US Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644, which ruled that the fundamental right to marry is guaranteed to same-sex couples. The Colorado Supreme Court issued opinions that Obergefell applied retroactively to same-sex common law marriages, so long a common law marriage was found to be in effect, since bans against same-sex marriage were unconstitutional. In doing so, it affirmed the Colorado Court of Appeals’ decision that same-sex couples have the right to divorce in Colorado, establishing legal precedent for the dissolution of same-sex marriages.

Same-sex divorce in Colorado presents unique legal considerations and rights for LGBTQ+ couples navigating the dissolution of their marriages. From jurisdictional requirements and property division to child custody and parental rights, same-sex couples facing divorce should seek experienced legal guidance to ensure their rights are protected and their interests are represented throughout the process. At Boal Law in Colorado Springs, we are committed to providing compassionate and knowledgeable legal representation to LGBTQ+ individuals and families seeking to navigate the complexities of divorce with confidence and clarity.

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