PR 05605.007 Colorado
A. PR 04-095 Entitlement to Spousal Benefits Based on Adams County Colorado District Court Determination of Putative Marriage While Separate Legal Marriage Exists, NH-Michael R~ SSN ~
DATE: March 8, 2004
The claimant for mother's benefits cannot qualify as the NH's putative spouse under Colorado law because she lacked a good faith belief that she and the NH were legally married. She knew of his prior marital relationship with another woman and encouraged him to take legal action to dissolve it. The other woman can qualify as the NH's common-law spouse because she and the NH lived together and held themselves out to the community as married in a mutual and open assumption of a marital relationship. The Commissioner is not bound by the order issued by the District Court stating that the claimant and the NH had a putative marriage. The issue of her spousal status does not appear to have been genuinely contested under SSR 83-37c, and the Colorado Supreme Court would not find that the meets the legal definition of a putative spouse under Colorado law.
You requested an opinion concerning whether a putative marriage existed between Andrea K~ and deceased number holder Michael R~ for purposes of determining spousal benefit eligibility when her "good faith" remains questionable but an Adams County District Court order declares her a putative spouse.
The facts in this case are extensive. Michael D. R~ (Mr. R~) (~) and Cynthia L. S~ (Ms. S~) began living together in September of 1984 in Arvada, Colorado. (Cynthia S~'s Statement of Marital Relationship, April 22, 2002.) Ms. S~ was still married to Donald S~ at the time. (Colorado Divorce Detail of Cindy S~.) Ms. S~ claims that Mr. R~ knew that the divorce was not final from the time they began living together and was with her in court when the decree was entered on April 3, 1987. (Cynthia S~'s Statement of Marital Relationship.)
In January of 1985, Mr. R~ provided Ms. S~ with a diamond ring and began calling her "his wife." See id. Although there was never a formal ceremony, Ms. S~ claims that the two of them agreed to do this eventually. See id. Ms. S~ had a daughter from the previous marriage named Brynn, and Mr. R~ always referred to her as "his daughter." See id. Ms. S~ introduced Mr. R~ to acquaintances as her "husband." See id.
Sometime in 1985, they purchased a car together. (Cynthia S~'s Statement of Marital Relationship.) Later in 1990 or 1991, they purchased a piece of land in Grand Lake (Grand County Clerk and Recorder Details, April 24, 2003) where they planned to retire together. (Cynthia S~'s Statement of Marital Relationship.) They purchased another vehicle, a 1969 Ford Mustang, in 1995, and the bill of sale listed them as "Mike and Cindy R~." (Bill of Sale, September 3, 1995.)
Over the course of their 14-year relationship, Mr. R~ and Ms. S~ included their names on documents jointly as husband and wife. In 1992, they filed both federal and State joint income tax returns as married. (Individual Income Tax Returns, 1992.) In 1989, Ms. S~ also claimed Mr. R~ as a dependent spouse on her health insurance policies with Met Life and Metropolitan Insurance Companies. (Insurance Enrollment Form, December 21, 1989.) She included coverage for a spouse on her J.C. Penney Life Insurance Policy dated July 3, 1993. (J.C. Penney Life Insurance Company, Certificate of Insurance, July 3, 1993.)
According to Ms. S~, their friends and family considered them married. (Cynthia S~'s Statement of Marital Relationship.) Various people and entities referred to Mr. R~ and Ms. S~ as married. A wedding invitation in 1994 was addressed to "Mr. & Mrs. Mike R~."
The relationship went sour in January of 1998. Although the couple did not plan to end the relationship, they planned a 6-month separation. (Cynthia S~'s Statement of Marital Relationship.)
Soon thereafter, Mr. R~ entered into a relationship with another woman. Andrea K~ claims that Mr. R~ began living with her in March 1999. (Andrea K~'s Statement of Marital Relationship, April 16, 2002.) She claims that they lived together as "man and wife," and planned a formal ceremony that never came to fruition because Mr. R~ became ill. See id. Mr. R~ died on October 8, 2000, of respiratory problems from sepsis. (Death Certificate of Michael R~, October 17, 2000.)
Mr. R~ and Ms. K~ structured several accounts and transactions indicative of a marital relationship. Available evidence indicates that they held a joint account with First Nationwide Mortgage. (Monthly Mortgage Statement, October 3, 2000.) Mr. R~, a member of the International Brotherhood of Electrical Workers (IBEW), named Ms. K~ as a beneficiary spouse on his pension records. (Beneficiary Designation Card of Michael R~, October 13, 1999; see also Letter from the Trust for the IBEW Pension Benefit Fund, June 9, 2000.) Subsequent correspondence and a death claim check from the IBEW Pension Fund were addressed to her as "Andrea R~." (Letter from the Trust for the IBEW Pension Benefit, November 13, 2000.) Another life claim letter and check from the Line Construction Benefit Fund were addressed to Andrea M. K~-R~. (Letter from LINECO, October 24, 2000.) Mr. R~ included Ms. K~ on his HealthOne insurance policy. (HealthOne Medical Record, July 27, 2000.) They received a warranty deed as joint tenants on some property in Clear Creek County on December 3, 1999. (Warranty Deed, December 3, 1999.) In addition, they executed a warranty deed on their home in Thornton on February 26, 1999 (Warranty Deed, February 26, 1999.) They held joint accounts at Horizons North Credit Union. (Account Statement, June 30, 2001.) They did not, however, file joint tax returns, but rather, Mr. R~ filed as "single" and Ms. K~ as "head of household" in both 1999 and 2000. (Individual Income Tax Returns for both 1999 and 2000.) Ms. K~ maintains that she was not aware of a possible common law marriage between Mr. R~ and Ms. S~ until after Mr. R~'s death. (Andrea K~'s Statement of Marital Relationship.)
Following Mr. R~'s death, conflict arose between Ms. S~ and Ms. K~ over which was his legal spouse. The first death certificate issued on October 17, 2000, for Mr. R~ listed Ms. K~ as his spouse. (Death Certificate of Michael R~.) An amended death certificate issued on December 12, 2000 listed Ms. S~ as the spouse. (Amended Death Certificate of Michael R~.)
Ms. K~ applied for mother's benefits in November of 2000. She also filed for child's benefits on behalf of her two children, Jeremiah and Mariya, alleging they were stepchildren to Mr. R~. These claims were denied for failure to establish entitlement as a spouse, resulting in no stepchild relationships being established.
In July 2001, Ms. K~ obtained a court "stipulation to Spousal Status" from Adams County District court, declaring her the putative spouse of Mr. R~ as of the date of his death. (Adams County Court Order Approving Stipulation to Spousal Status, July 5, 2001 (hereinafter "Adams County Court Order").) The order was issued subsequent to an agreement between Ms. S~ and Ms. K~ in the settlement of Mr. R~'s estate. (Settlement Agreement Between Cynthia L. S~ and Andrea K~, June 27, 2001.) The order recognized Ms. S~ as the legal spouse on the date of death. (Adams County Court Order.) It also stated that Ms. K~ was a putative spouse and therefore entitled to claim all benefits available to her under the law arising from Mr. R~'s death. See id. Ms. K~ applied again for mother's benefits and child's benefits on April 18, 2002, and has protective filing to August 2001. (Application for Benefits, April 18, 2002.) In her application under penalty of perjury, she stated that she always knew about Ms. S~ and was always pushing Mr. R~ to do something legal to terminate that relationship. See id.
Upon further investigation, the district office where Ms. K~'s claims were taken discovered that Margaret R~, mother of the deceased number holder, did not consider Ms. K~ to be the spouse of her son. (Report of Contact with Margaret R~, April 23, 2002). She also states that Mr. R~ didn't either. See id.
Section 202 of the Social Security Act provides that a surviving spouse of an individual who dies insured may be eligible for mother's benefits. See 42 U.S.C. § 402(g)(1)._11 The applicant must (1) not be married, (2) not be entitled to a surviving spouse's insurance benefit or old age benefits, (3) file an application, and (4) have a child of the deceased wage earner in his or her care. See 42 U.S.C. § 402(g)(1)(A)-(F); see also 20 C.F.R. § 404.339._22 A "surviving spouse" is defined as a "widow," or surviving wife of the wage earner who was married to him for at least one year before the application. See 42 U.S.C. § 416(b)-(c). Likewise, the Act provides benefits for children, if, among other things the child for who benefits are applied for (1) was the insured person's child and (2) the child was dependent on a deceased wage earner. See 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350. The definition of "child" includes those children who were stepchildren of the deceased wage earner for at least one year before an application for child's benefits is filed. See 42 U.S.C. § 416(e). Stepchildren are eligible for benefits only if the natural parent was legally married to the insured. See 20 C.F.R. § 404.357.
In deciding whether a claimant was legally married to an insured person, we look to the laws of the State where the insured had a permanent home when he or she died. See id. § 404.345; see also 42 U.S.C. § 416(h)(1)(A)(i) (applicant is wife of deceased insured individual if the courts of the State where applicant was domiciled at the time he died would find that such applicant and deceased insured individual were validly married at the time that he died); see also Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989) (stating that "the courts" refers to the highest court of that State in a proceeding contested by parties with opposing interests). "Permanent home" means the "true and fixed home" or legal domicile of a person, or the place that they intend to return whenever he or she is absent. See 20 C.F.R. § 404.303. In this case, no dispute exists as to whether Mr. R~ had a permanent home in Colorado when he died.
Colorado recognizes the doctrine of common law marriage. See Klipfel's Estate v. Klipfel, 92 P. 26 (Colo. 1907) (quoting Taylor v. Taylor, 50 P. 1049, 1049 (Colo. App. 1897)). A common law marriage in Colorado requires two elements. First, there must be an agreement to take each other in marriage. See Taylor, 50 P. at 1049. Agreement can be inferred from cohabitation and reputation that the parties "hold themselves out" to the community as husband and wife. Id. at 1049; see People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). Second, there must be mutual and open assumption of a marital relationship. See Clayton Coal Co. v. Indus. Comm'n, 25 P.2d 170 (Colo. 1933). Generally, common law marriage cannot arise while one of the parties is still legally married to another until the legal marriage to the other person is dissolved or other impediment removed. See Crandell v. Resley, 804 P.2d 272, 276 (Colo. App. 1990); see also Clark v. Clark, 229 P.2d 142 (Colo. 1951); see also In re Morrow's Estate, 68 P.2d 36, 39 (Colo. 1937). The party asserting common law marriage carries the burden of proof, which is a preponderance of the evidence but evidence must also be "clear, consistent, and convincing."
Employee' Mut. Liab. Ins. Co. of Wisconsin v. Indus. Comm'n, 234 P.2d 901, 903 (Colo. 1951).
Colorado also adopts the putative spouse doctrine, which allows a person to claim the rights of a marital relationship in the absence of a legal marriage. A putative spouse obtains the rights conferred upon a legal spouse, whether or not the marriage is prohibited, when the person has (1) cohabitated with another to whom (2) he or she is not legally married in (3) the good faith belief that he was married to that person (4) until "knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights." Colo. Rev. Stat. § 14-2-111 (2003) (emphasis added). The definition of "prohibited marriage" includes those marriages entered into prior to the dissolution of an earlier marriage of one of the parties. Colo. Rev. Stat. § 14-2-110 (2003). In addition, Program Operations Manual System (POMS) GN 00305.085 clearly states that putative marriage requires continuous good faith belief that the marriage was legal until the worker dies in order to be valid.
Based upon the available facts, after her divorce in April 1987, Ms. S~ could satisfy the elements required for a common law spouse. Common law marriage in Colorado requires cohabitation. See Taylor, 50 P. at 1049; see also Lucero, 747 P.2d at 663. Mr. R~ and Ms. S~ lived together from September 1984 until they separated in January of 1998. Common law marriage also requires "holding out." See id. It also requires a "mutual" and "open" assumption of marital status. See Clayton, 25 P.2d 170. In 1992, Mr. R~ and Ms. S~ filed both State and Federal tax returns jointly. Ms. S~ claimed him as a dependent spouse for health insurance purposes and included coverage for Mr. R~ as her spouse on her life insurance policy. They received a wedding invitation addressed to them as though they were married. These facts evince that Mr. R~ and Ms. S~ were "holding themselves out" to the community as man and wife, and both openly presented themselves as married to each other. Even though Ms. S~ was still married to Donald S~ at the time she began living with Mr. R~, that impediment was removed with finalization of her divorce in April 1987. She and Mr. R~ continued to cohabitate and held themselves out as married until their eventual separation in January of 1998. The evidence of a common law relationship between Mr. R~ and Ms. S~ seems "clear, consistent and convincing." On these facts, Ms. S~ could satisfy the legal requirements as a common law spouse to Mr. R~ under Colorado law.
Ms. K~ cannot satisfy the legal requirements for a common law marriage to Mr. R~ because Mr. R~ and Ms. S~'s relationship had not legally terminated at the time Ms. K~ began living with Mr. R~. She also cannot satisfy the legal requirements of a putative marriage because she lacked a good faith belief that Mr. R~'s prior relationship to Ms. S~ was legally dissolved.
Two common law marriages cannot exist simultaneously. See In re Morrow's Estate, 68 P.2d at 39; see also Crandell, 804 P.2d at 276. Because Mr. R~'s common law marriage to Ms. S~ had not legally terminated when his relationship with Ms. K~ commenced, he and Ms. K~ could not have a common law marriage even though they arguably held themselves out to the community as married.
As previously stated, a putative spouse must (1) live with another person (2) to whom she is not legally married with (3) good faith belief that she is married to the other person (4) until knowledge of the fact that she is not legally married terminates her status. See Colo. Rev. Stat. § 14-2-111. Also, as mentioned in previous memoranda on this topic, to receive benefits a putative spouse in Colorado must have continuous good faith belief in the validity of the marriage until the worker dies. See Memorandum from OGC Region VIII to RC, Putative Common Law Marriage in Colorado, 3 (1985) (Claimant cannot be putative common law spouse if finder of fact determines that she knew of prior undissolved marriage before worker died); see also Memorandum from OGC Region VIII to RC, Putative Marriage, Colorado (1979) (Putative common law marriage did not arise when putative spouse did not meet the good faith belief requirement of the Colorado statute).
Ms. K~ did not meet the required elements and was not Mr. R~'s "common law putative spouse." First, it is true that Mr. R~ and Ms. K~ lived together. Second, if Mr. R~ was legally married to Ms. S~, he could not have been legally married to Ms. K~. It is also true that they may have held themselves out as married because they held some joint accounts; Ms. K~ was named as a beneficiary spouse on Mr. R~'s union pension, and Ms. K~ was included on Mr. R~'s health insurance policy. However, Ms. K~ fails to meet the elements of a putative spouse because she lacked a good faith belief that she was married to Mr. R~ prior to his death. Specifically, in her application for benefits on April 16, 2002, she acknowledged that she was "aware of Mr. R~'s relationship with Ms. S~ and had asked him several times to take legal action to end the marriage." On these facts, Ms. K~ lacked a good faith belief that Mr. R~ was not married to another and therefore could not have been his putative spouse.
We recognize the Adams County District Court issued an order determining that Ms. K~ was Mr. R~'s putative spouse. However, the Commissioner of Social Security is not bound by the decisions of a State court in a proceeding to which she is not a party. But, she is not free to ignore an adjudication of a State trial court where it is fair and consistent with the law as enunciated by the highest court of the State. The Commissioner must accept the determination made by a State court where (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction, (2) the issue is genuinely contested before the State court by parties with opposing interests, (3) the issue falls within the general category of domestic relations law, and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. See Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973) (emphasis added) (citing Legory v. Finch, 424 F.2d 406 (3rd Cir. 1970)); see also Social Security Ruling (SSR) 83-37C (1983). Where the highest court in the State has not spoken on the particular area of law at issue, the Commissioner may follow the decision of the lower court but "is free to disregard that decision if he feels that it is contrary to what the supreme court of that State would rule if presented with the question." Rogers v. Sullivan, 795 F. Supp. 761, 764-65 (E.D.N.C. 1992) (quoting Cain v. Sec'y of Health, Educ. & Welfare, 377 F.2d 55, 57 (4th Cir. 1967); see also Warren, 868 F.2d at 1447 (stating that the Commissioner is obligated by statute to determine the law as would the highest court of the State in a proceeding contested by parties with opposing interests). A lower court decision should be followed if it is "fair and logical and no authoritative decision to the contrary exists." Id., see also Legory, 424 F.2d at 410.
The Adams County District Court order approving stipulation to spousal status involves the issue of Ms. K~'s relationship to Mr. R~, an issue in her claim for benefits, and the issue was determined by a State court of competent jurisdiction. See Colo. Const. Art. 6 § 9 (stating jurisdiction vests in Colorado District Courts to hear matters regarding probate or domestic relations). Thus, the first requirement of the Gray analysis is satisfied. Ms. K~'s status as a putative spouse also arguably "falls within the general category of domestic relations law," satisfying the third step of the Gray analysis.
However, Ms. K~'s spousal status does not appear to have been "genuinely contested" under the meaning of SSR 83-37c. To be genuinely contested, an issue must be disputed by parties with opposing interests. See George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (a court order did not bind the Commissioner and was not genuinely contested where no evidence was presented or any material controversy resolved); see also Outwater v. Sec'y of Health & Human Servs., 894 F. Supp. 1114, 1120 (E.D. Mich. 1995) (court found that where transcript from the proceeding failed to show that the issue was discussed that it could not have been "genuinely contested" under Gray); Rogers, 795 F. Supp. at 765 (court stated that a proceeding where a jury found that a party was a common law wife was "genuinely contested"); McEvers v. Sullivan, 785 F. Supp. 1321, 1328 (C.D. Ill. 1992) (finding that a court order declaring a marriage invalid after one of the parties died was not "genuinely contested"); Winters v. Sec'y of Health & Human Servs., No. C-3-87-419, 1989 WL 280323 at * 2 (S.D. Ohio Dec. 11, 1989) (State court proceeding is "genuinely contested" when parties are cross examined and evidence is presented in favor and opposition to positions of the parties); Thomasello v. Apfel, No. 97-3701, 1998 WL 597643 at * 2 (7th Cir. Aug. 28, 1998) (stating that where an order is not the product of truly adversarial proceedings, there is good reason to question it's reliability). In this case, the parties did not litigate, but settled, after which stipulations were entered to approve of the settlement agreement and spousal status. In fact, based upon information obtained from the District Court, both a hearing and trial were scheduled but neither was held. Based upon this information, the court order appears to fail the "genuinely contested" inquiry of Gray and SSR 83-37c.
We note previous opinions from this office that take an alternative view on the "genuinely contested" requirement. In particular, we have stated that "to require a genuine contest may be to require the impossible, and that knowing waiver of the opportunity to contest can compensate for the absence of a contest." See Memorandum from OGC Region VIII to Acting ARC, Child's Status under North Dakota Law, 3 (1990) (quoting Memorandum from OGC Region V to ARC, Programs, Mutual Acknowledgement of Paternity in Michigan, (1985)). Ms. K~ might argue that Ms. S~'s agreement to stipulate as to spousal status shows both notice and waiver of the opportunity to contest. While this argument seems compelling, it still does not make the court order binding on the Commissioner because Ms. K~ cannot satisfy the fourth and final requirement that the finding be consistent with the law as enunciated by the highest court in the State if it were to speak regarding this issue.
Based upon the facts, the finding that Ms. K~ was Mr. R~'s putative spouse would probably not be consistent with a holding of the Colorado Supreme Court if they were to speak on this particular area of law. As discussed above, where the State Supreme Court has not spoken on the particular area of law at issue, the Commissioner "is not required to follow a lower court's decision to which she is not a party" but can disregard the decision if she feels that it is contrary to what the Supreme Court of that State would rule if presented with the question. See Rogers, 795 F. Supp. at 764 (quoting Cain, 377 F.2d at 57). There are no reported cases where the Colorado Supreme Court has spoken regarding Colo. Rev. Stat. § 14-2-111 or the elements of putative marriage. But, the statute clearly says that for the person claiming to be a putative spouse, "knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights." Colo. Rev. Stat. § 14-2-111. And, in Williams v. Fireman's Fund Ins. Co., the Colorado Court of Appeals held that a putative spouse keeps the rights of a legal spouse if she does not discover the prior undissolved marriage of her spouse until after his death. 670 P.2d 453, 455 (Colo. App. 1983). Likewise, in People v. McGuire, the Colorado Court of Appeals also held that knowledge of a previous marriage "negates any good faith belief" that might be available to a participant in an invalid marriage. 751 P.2d 1011, 1012 (Colo. App. 1988). Ms. K~ cannot be a putative spouse because she knew of the previous legal marriage of Ms. S~ and Mr. R~ prior to his death, which destroyed her good faith. As such, the Supreme Court of Colorado would probably not find Ms. K~ to have satisfied the good faith requirement of Colo. Rev. Stat. § 14-2-111, and she therefore would not qualify as a putative spouse.
Accordingly, we advise that:
(1) Ms. S~ could qualify as Mr. R~'s common law spouse because she and Mr. R~ lived together and held themselves out to the community as married in a "mutual" and "open" assumption of a marital relationship.
(2) Ms. K~ could not qualify as Mr. R~'s putative spouse under Colorado law because she lacked a "good faith belief" that she and Mr. R~ were legally married. Ms. K~ knew of his marital relationship with Ms. S~ and encouraged him to take legal action to dissolve it.
(3) The Commissioner is arguably not bound by the order issued by the Adams County District Court because (a) the issue of Ms. K~'s spousal status does not appear to have been genuinely contested under the meaning of Gray v. Richardson and SSR 83-37c, and (b) based upon the facts, we do not believe the Colorado Supreme Court would find she meets the legal definition of a putative spouse under Colorado law.
Yvette G. K~
Regional Chief Counsel, Region VIII
Michael A. T~
Assistant Regional Counsel
_11All references to the United States Code (U.S.C.) are to the 2000 edition.
_22All references to the Code of Federal Regulations (C.F.R.) are to the 2003 edition.
B. PR 82-003 Clifford J. L~, ~ -- Possible Common-Law Marriage -- Colorado -- Freda L~, Claimant
DATE: March 18, 1982
MARRIAGE -- Validity -- In General
Where an alleged husband and wife not domiciled in Colorado have visited that State frequently and have held themselves out to be husband and wife but have not expressly agreed to become husband and wife, Colorado Courts would hold that no valid common-law marriage has been contracted.
(L~, Clifford J. - ~ (S~) Region IX to DIR., IPB 3/18/82
By memorandum dated January 12, 1982, you recommended that the Regional Commissioner, SSA, Region IX, forward for our opinion the claims file of Clfford J. L~ ~. 'The issue is whether the courts of Colorado (if presented with the question) would hold that Clifford J. L~ and Freda L~ contracted a common-law marriage in Colorado, based upon their actions while visiting the State.'
A memorandum by the Acting Director, Western Program Service Center, and the accompanying claims file reflect the following facts. Clifford J.. L~ and Freda L~ ~ began. living together in 193?, in Carmel, California. Both state that they agreed to live together as husband and wife "forever", and they have been known as such by their neighbors, children, and other relatives. They have never been ceremonially married. At the time they began living together, and ever since, the L~ have been domiciliaries of California, which does not permit common-law marriages to be contracted in that State. The L~ have visited Colorado "many times" since 1937, and have visited just about every year since 1969, when they, doing business as the L~ Painting Company, Inc., bought a general store in Dry Creek Basin, Colorado, in partnership with their daughter and son-in-law. The store property includes three apartments, one of which is kept vacant for them and in which they stay when visiting, usually for two or three months each year.
Mr. L~ describes Dry Creek Basin as a very small place, with a population of less than 100 persons, and alleges that he and Freda L~ are well known in the area as husband and wife. He states that they never discussed getting married in Colorado, because there was "no reason for us to discuss marriage any more than there would have been for any other married couple." Freda L~ also states that they never expressly agreed to be married while in Colorado for essentially the same reason, elaborating that "we had no way of knowing that our discussing marriage and agreeing to be married while we were in Colorado, when we had already done it before, later would become a point upon which the validity of our marriage would hinge." The L~ have filed Colorado income tax returns as full year nonresidents, showing a filing status of married. Their California and United States income tax returns show the same filing status.
This office has issued several opinions on the general issues-raised in this case.-..See, memoranda re: "Common-Law Marriage--Sojourn Doctrine--Herbert O. G~, SSN ~, RA VIII (S~) to RC, SSA, February 1, 1982; "Common-Law Marriage--Sojourn Doctrine--Supplement", RA VIII (S~) to RC, SSA, May 12, 1981, "Common-Law Marriage--Colorado--Sojourn Doctrine", RA VIII (S~) to RC, SSA, June 13, 1980. In those opinions we have consistently. concluded, based upon the authorities cited therein, that if the Colorado courts were ever to face the question whether nonresidents of Colorado have established a common-law marriage in that State, absent an express agreement between the-parties while in-Colorado (together with proof of cohabitation), the Colorado courts would not find they established a common-law marriage based upon "habit and repute".
Although the L~ have substantial contacts with Colorado, the evidence is clear that there has never been any express agreement by them while in Colorado to become husband and wife, and their travels here have not been for the purpose of changing their domicile or residence, or of contracting a common law marriage. Cf., In re Binger's Estate, 63 N.W. 2d 784, 787 (Neb. 1954). Also, both parties expressly deny that their relationship, which was clearly illicit when entered into, was changed as a result of their visits. Cf., Goldin v. Goldin, 426 A.2d 410 (Md. 1980), Walker v. Hildenbrand 410 P.2d 244 (Or 1966), and State ex rel. Smith, 161 P.2d 188 (Wash. 1945). Application of these principles would appear, therefore, to require the conclusion that the Colorado courts, if presented with this question, would hold that Clifford J. L~ and Freda L~ have not contracted a common-law marriage during their visits to Colorado.
In your memorandum soliciting our opinion, you cited In re McKanna's Estate, 106 Cal.App.2d 126, 234 P.2d 673 (1951), which involved a common law marriage between two domiciliaries of California. In that case, unlike the present one, there was evidence that the individuals expressly agreed while in Texas to be husband and wife, followed by cohabitation there (although not as domiciliaries). In reaching the conclusion that the Texas courts would recognize the M~ as husband and wife, the California court distinguished the situation there from those in which the contract of marriage is invalid under the law in the State in which it is made, and the status of the parties is thereafter regarded as meretricious, with that status following them to Texas unless there is a new agreement of marriage made in Texas, followed cohabitation and a public holding-out, or unless they become domiciled in Texas. It appears, therefore, that M~ (although involving the application of Texas law) supports, at least in dictum, the conclusion that the Le N~ did not contract a common-law marriage.